CYTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 3887

CYTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3887 (22 October 2021)

Division:GENERAL DIVISION

File Number:          2020/5942

Re:CYTW  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Ms C Burnett-Wake, Member

Date:22 October 2021

Place:Melbourne

The Reviewable Decision of the delegate of the Respondent dated 21 September 2020 to refuse the Applicant a Protection (Class XA) (Subclass 866) visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.

…………[sgd]…………………………….
Ms C Burnett-Wake, Member

CATCHWORDS

MIGRATION – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant engages s 36(2C)(b) of the Migration Act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Crimes Act 1958 (Vic)

CASES

BHYK and Minister for Immigration and Citizenship [2010] AATA 662

DOB18 v Minister for Home Affairs [2019] FCAFC 63

FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1513

HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108

LKQD and Minister for Immigration and Border Protection [2019] FCA 1591

MVLW and Minister for Immigration and Border Protection [2017] AATA 1557

MHCZ and Minister for Home Affairs [2019] AATA 4259

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665

SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1515

SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40

WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434

SECONDARY MATERIALS

Department of Home Affairs, Refugee Law Guidelines (at 30 March 2021)

Department of Home Affairs, Complementary Protection Guidelines (at 30 March 2021)

Department of Foreign Affairs and Trade, Country Report (South Sudan)
2014 (Cth)
Ministerial Direction 75 - Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)
Ministerial Direction 84 - Consideration of Protection visa applications
Protocol Relating to the Status of Refugees

Explanatory Memorandum, Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Bill

United Nations Convention Relating to the Status of Refugees

REASONS FOR DECISION

Ms C Burnett-Wake, Member

22 October 2021

INTRODUCTION

1. CYTW (the Applicant) seeks review of a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister or the Respondent) on 21 September 2020 to refuse the Applicant the grant of a Protection (Class XA) (subclass 866) visa (the Protection visa) pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).

2. The basis of the delegate’s refusal was that, in the delegate’s opinion, the Applicant, having been convicted by a final judgment of a particularly serious crime, was a danger to the Australian community. The delegate therefore found that the Applicant failed to meet the necessary criterion contained in s 36(1C)(b) of the Act for the grant of a Protection visa.

   CONFIDENTIALITY

3. As this matter relates to a protection-related visa, s 501K of the Act mandates that the Tribunal must not publish information that may identify the Applicant or any relatives or dependant of the Applicant. The Applicant will therefore be referred to by the anonym ‘CYTW’. The names of witnesses and other details tending to identify CYTW will not be disclosed.

   BACKGROUND

4. The Applicant was born in 1986 in South Sudan. On the material before the Tribunal, it appears he is a citizen of that country. The Applicant, along with his mother and four younger siblings arrived in Australia in 2006, each the holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa (GSH visa).

   The Applicant’s GSH visa was the subject of a mandatory cancellation decision pursuant to s 501(3A) of the Act. The mandatory cancellation decision (GSH visa cancellation) was made on 27 October 2017. The mandatory cancellation was based on a finding by the Respondent that the Applicant did not pass the character test as defined in s 501(6)(a) of the Act when read in conjunction with s 501(7)(c) due to the Applicant receiving a sentence of imprisonment of more than 12 months; and serving a full-time term of imprisonment. On 20 August 2018, the Respondent made a decision not to revoke the GSH visa cancellation decision.

   The present application

5. Following the cancellation of the Applicant’s GSH visa on 27 October 2017, the Applicant applied for a Protection visa on 14 September 2018.

6. On 21 September 2020, the delegate of the Respondent refused the Applicant’s application for the Protection visa. The delegate was satisfied that the Applicant met the ‘refugee’ criterion in s 36(2)(a) of the Act, and the ‘complementary protection’ criteria in s 36(2)(aa) of the Act. With respect to the ‘refugee criteria’, the delegate was satisfied that the Applicant did fear persecution upon a return to South Sudan as a result of his membership of a particular social group described as ‘long absent South Sudanese Dinka failed asylum seeker males returning to South Sudan from a western country without family or other support’. 

7. On 28 September 2020, the Applicant applied to this Tribunal for review of the delegate’s abovementioned refusal decision dated 21 September 2020 (the Reviewable Decision). Section 500(1)(c) of the Act confers jurisdiction on this Tribunal to review a decision to refuse a Protection visa where that decision is made under s 65 of the Act, if the refusal was grounded on, inter alia, s 36(1C) or s 36(2C) of the Act.

8. The hearing took place on 25 and 26 February 2021. The Tribunal heard oral evidence from the following:

   (a)The Applicant;

   (b)The Applicant’s brother; and

   (c)Ms SL CEO of Afri-Aus Care.

9. The Tribunal also received written material which was itemised in an Exhibit List, a true and correct copy (anonymised) of which is attached hereto and marked ‘Annexure A’.

   LEGISLATIVE HISTORY OF SECTION 36(1C)

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

11. It is worth outlining the relevant components of Article 33 of the Refugees Convention. Article 33(1) states:

    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.

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

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

13. When the then-new s 36(1C) was sought to be introduced into the Act, the relevant Explanatory Memorandum to the intended amendment said the following:

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

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

14. The then-Minister’s Explanatory Statement was tabled introducing the proposed s 36(1C) into the Act[2] in which the Minister wrote that it created: ‘…a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention.’[3] The net effect of s 36(1C) is thus to replace the previous methodology regarding how Australia’s protection obligations to refugees and non-citizens are to be applied. Previously, the determination as to whether a person is eligible for a Protection visa was made by reference to the Refugees Convention. After the introduction of s 36(1C), that determination was able to be made without reliance on the Refugees Convention or any external interpretations of it.

    [2] Inserted by the Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Bill more generally.

    [3] Ibid, page 10.

15. As will be noted from the abovementioned reference to, respectively, Articles 33(1) and (2) of the Refugees Convention, the determination of whether a refugee is subject to the exception to the prohibition against refoulement involved the application of a two-step process. First, there had to be a determination of whether a person ‘has been convicted by final judgment of a particularly serious crime’. If the answer to that question is in the affirmative, a determination was then required to be made as to whether that person constitutes a danger to the community. An identical two-step approach now appears in s 36(1C) which must be applied in determining whether a person is excluded from the grant of a Protection visa.

    RELEVANT ISSUE: WHETHER THE APPLICANT MEETS THE CRITERION IN SECTION 36(1C)

16. There is one main issue before this Tribunal. That main issue has two sub-issues that the Tribunal will consider in turn to the extent necessary. Those sub-issues are:

    (a)Has the Applicant been convicted by a final judgment of a particularly serious crime?; and if so,

    (b)Does the Applicant represent a danger to the Australian community?

17. The Tribunal will address each issue in turn having regard to all of the evidence now before the Tribunal as particularised at Annexure A of these reasons.

    SUB-ISSUE 1: HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGMENT OF A SERIOUS CRIME?

18. Under s 5M of the Act, a ‘particularly serious crime’, as that term is used in s 36(1C)(b), is defined as follows:

    Particularly serious crime

    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:

    (a) a serious Australian offence; or

    (b) a serious foreign offence.

19. Section 5 of the Act relevantly provides a definition of ‘serious Australian offence’:

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

    (a) 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

    (b)    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.

20. The Applicant conceded that he has been convicted of a ‘particularly serious crime’ for the purposes of s 36(1C)(b).[4]

    [4] Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) at [15].

21. The Tribunal has had regard to the Applicant’s summary of offences.[5] The Applicant has been convicted of offences which meet the threshold of being a ‘serious Australian offence’ as they have involved violence against a person and serious damage to property with both types of offences carrying a maximum prison sentence of not less than three years. 

    [5] T-Documents T3/173-177.

22. These offences for which the Applicant was convicted under the Crimes Act 1958 (Vic) (Crimes Act) include the following.

23. In October 2011, the Applicant was convicted of:

    ·Intentionally destroying or damaging property, contrary to s 197 - an offence that carries a maximum penalty of 10 years’ imprisonment; and

    ·Making a threat to kill, contrary to s 20 - an offence that carries maximum penalty of 10 years’ imprisonment.

24. In September 2015, the Applicant was convicted of:

    ·Intentionally damaging property, contrary to s 197 of the Crimes Act – an offence that carries a maximum penalty of 10 years imprisonment; and

    ·Making a threat to inflict serious injury, contrary to s 21 of the Crimes Act — an offence that carries a maximum penalty of 5 years’ imprisonment.

25. In December 2015, the applicant was convicted of:

    ·Making a threat to inflict serious injury, contrary to s 21 of the Crimes Act — an offence that carries a maximum penalty of 5 years’ imprisonment.

26. In July 2016, the applicant was convicted of:

    ·Intentionally damaging property, contrary to s 197 of the Crimes Act – an offence that carries a maximum penalty of 10 years imprisonment; and

    ·Making a threat to inflict serious injury, contrary to s 21 of the Crimes Act an offence that carries a maximum penalty of 5 years’ imprisonment.

27. Based on this evidence, the Tribunal is satisfied that the Applicant has been ‘convicted by a final judgment of a particularly serious crimes’, which are ‘serious Australian offence[s]’ under s 5M(a) of the Act. A ‘serious Australian offence’ is defined in s 5(1)(a)(i) of the Act to include an ‘offence that involves violence against a person’ which is punishable by a maximum term of imprisonment of not less than three years: s 5(1)(b)(iii) of the Act. Each of these seven offences are an offence involving violence against a person and/or serious damage to property, punishable by a term of at least three years’ imprisonment.

    SUB-ISSUE 2: DOES THE APPLICANT REPRESENT A DANGER TO THE AUSTRALIAN COMMUNITY?

28. Unlike in s 501 of the Act, the determination of whether the Applicant poses a ‘danger to the Australian community’ does not involve the exercise of a discretionary power. If the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision: s 65 of the Act and MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 (MVLW) at [29]-[32]. There is also no requirement to undertake any ‘balancing’ of the danger the Applicant poses to the community against the possible harm they may face if returned to their home country: SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 at [27].

29. In WKCG and Minister for Immigration and Citizenship (WKCG),[6] Deputy President Tamberlin articulated the following meaning of ‘danger’ in the context of s 36(1C)(b) of the Act, at [31]:

    The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.”

    (Emphasis added.)

    [6] (2009) 110 ALD 434.

30. Deputy President Tamberlin explained that whether a person is a danger to the Australian community is a question of fact and degree and that regard must be had to all the circumstances of each individual case.[7]  The Deputy President’s interpretation of ‘danger’ in s 36(1C) of the Act has been applied in subsequent Tribunal decisions, including:

    (a)BHYK and Minister for Immigration and Citizenship [2010] AATA 662 (BHYK);

    (b)MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 (MVLW);

    (c)LKQD and Minister for Immigration and Border Protection [2019] FCA 1591 (LKQD); and

    (d)RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665 (RVJB). 

    [7] WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 [25].

31. In DOB18 v Minister for Home Affairs (DOB18),[8] Logan J, by way of obiter at [83], articulated his interpretation of ‘danger’ in the context of s 36(1C) of the Act. His Honour observed that ‘danger’ and ‘risk’ are qualitatively different concepts at [72]:

    The meaning to afford “danger” in s 36(1C)(b) of the Act must commence with the text itself, with context and general purpose and policy being relevant to the determination of the meaning to give to the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27. The word “danger” can mean “risk” but also carries with it the meaning of “the condition of being exposed to the chance of evil; risk, peril” (Oxford Dictionary). As is observed in respect of the word, “danger” in Garner’s Modern English Usage, “Idiomatically speaking, one runs a risk, not a danger.” Yet, as a matter of ordinary experience of English idiom, the word, “danger” on a public warning sign conveys a very different and heightened sense of potential peril than would the word, “risk”. Indeed, for that reason, and again as a matter of ordinary experience, it is rare, if at all, that one encounters a warning sign with the word, “risk” in prominence. “Danger” and “risk” are not, in English usage, in my view, exact synonyms. When regard is had both to the text and to the nature and purpose of the provision, it is inherently unlikely that, the word, “danger”, as found in the exception, refers to a risk that is discernible but which is trivial, nothing more than a bare possibility.

    [8] [2019] FCAFC 63.

32. His Honour held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’, and to the extent that WKCG suggested otherwise, His Honour disagreed.[9]  He stated at [83]:

    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” in s 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 than just ‘risk’.

    (Emphasis added.)

    [9] DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 83.

1. Logan J’s comments have resulted in a perceived tension in the current case law regarding the interpretation of ‘danger’ in s 36(1C) of the Act. However, in reference to Deputy President Tamberlin’s decision, the Respondent submitted:

   8. The term “danger to the Australian community” is not defined in the Act. The question whether a person constitutes a danger to the Australian community is one of fact and degree.2 The focus of the inquiry is whether the person is and will into the future be a danger, not whether the person was once a danger.3 The assessment to be made involves consideration of both the nature and the likelihood of the threat that a person poses to a member or members of the Australian community.4 The mere possibility that a person will cause some form of harm in future is not sufficient:5 read in context, the word “danger” in s 36(1C) means a “real risk”,6 or a “present and serious risk”.7 However, these terms do not displace the language of the Act. In particular, it must be noted that s 36(1C) says “danger”, not “very serious danger”.8

   Where a person has been convicted of a “particularly serious crime”, if there is a real risk of its repetition, then that person is likely to constitute a danger to the Australian community.[10]

   [10] Respondent’s Statement of Facts, Issues and Contentions (Respondent SFIC) at [8].

2. In SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1515 at [39], Senior Member Dr M Evans-Bonner agreed that the views of Deputy President Tamberlin and Logan J can be reconciled in this manner and this Tribunal respectfully agrees.

3. In LKQD, Jackson J at [57] rejected a contention that ‘danger’ referred to in s 36(1C) should be construed to mean a ‘very serious danger’, finding that it simply said ‘danger’. His Honour considered the remarks of Logan J and held at [62], without deciding their correctness, that even the ‘present and serious risk’ standard did not rise to the level of ‘very serious danger’.

4. In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (KDSP) at [54]-[55], Bromberg J explained in obiter that the statutory criterion of ‘danger’ in s 36(1C) suggests a ‘high level of risk’ and that this reflects the balancing exercise contained in Article 33(2) to which s 36(1C) gives effect:

   Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]). …

   That a stringent level or standard is required by s 36(1C) in relation to the prerequisites that must exist to engage its operation is explained by the nature of the balancing exercise by which those standards have been formed. A host State’s tolerance of the risk of harm is understandably higher in relation to people who are in need of protection and who, in the absence of being provided protection, may face significant harm.

5. Having regards to the above authorities, the Tribunal finds that s 36(1C)(b) requires an assessment of whether the Applicant presents a real and significant possibility of ‘danger to the Australian community’. That ‘danger’ requires a qualitatively higher level of possible harm and ‘conveys a very different and heightened sense of potential peril than would the word, ‘risk’. A stringent standard is required to give effect to Australia’s obligations under Article 33(2) of the Refugee Convention, which s 36(1C) of the Act intends to codify.

6. In WKCG, Deputy President Tamberlin identified some of the factors relevant to an assessment of whether a person is a ‘danger to the Australian community’ at [26] - [27]:

   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.

   The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism …

7. These factors provide useful tools for an assessment of whether the Applicant is a ‘danger to the Australian community’. However, as Senior Member Morris observed in FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1513 at [124], this list should not be taken to be exhaustive and regard must be had to all the circumstances of each individual case.

   Seriousness and nature of the crimes committed

8. The Applicant concedes that he has committed some serious crimes that have involved violence, such as Unlawful assault, Threats to inflict serious injury and kill, and Possession of a controlled weapon without excuse. The Applicant also concedes he has a history of non-compliance with the conditions of Community Corrections Orders (CCO), Family Violence Intervention Orders and bail, and that much of the more serious offending relates to instances of family violence. Although the offences the Applicant has most commonly been convicted of do not rise to the level of ‘serious crimes’, the Applicant further concedes that he has convicted of driving offences, dishonesty offences, including burglaries and thefts, property damage offences, and drug related offences.[11]

   [11] Applicant’s SFIC at [5].

9. The Applicant, however, contends that the Court in sentencing him, has already assessed the level of danger posed by him and has sentenced him appropriately to attend to that danger.[12]

   [12] Applicant’s SFIC at [26].

10. The Applicant further contends that the nature and relative seriousness of his individual offences over the course of his criminal history tends towards a conclusion that he is not a danger to the Australian community.[13]

    [13] Applicant’s SFIC at [37].

11. In contrast, the Respondent contends that the Applicant constitutes a danger to the Australian community. The Respondent submits that there is a real risk that, if the Applicant were granted a Protection visa, he would again commit further offences of the kind for which he has been convicted in the past, or other ‘particularly serious crime[s]’ reflecting an escalation of the pattern of family violence offences established before the Applicant’s imprisonment in September 2017.[14]

    [14] Respondent’s SFIC at [32].

12. The evidence before the Tribunal is that the Applicant’s offences have been committed over a seven-year period from 2010 through to 2017 and are entered in the criminal history as follows:[15]

    [15] T-Documents T2/33 and T3/ 173-177.

Court	Date	Offence	Result
Dandenong Magistrates Court	19/09/2017	Unlawful Assault; Contravene Family Violence Interim Intervention Order; Fail to Answer Bail	Aggregate 12 Months imprisonment, non- parole period 4 months
Dandenong Magistrates Court	19/07/2016	Contravene Community Corrections Order; Threat to Inflict Serious Injury; Unlawful Assault; Intentionally Damage Property; Contravene Family Violence Intervention Order	1 month (concurrent) Community Corrections Order cancelled – Aggregate 3 months
Dandenong Magistrates Court	19/07/2016	Ex. Prescribed conc. 3 hrs – breath – drive vehicle; Unlicensed driving; Fail to answer bail; Burglary; Theft; Resist protective services officer State false name when requested	Breach Community Corrections Order. Order cancelled – Aggregate 2 months; Breach Community Corrections Order. Order cancelled – 1 month (concurrent); Breach Community Corrections Order. Order. Convicted and discharged
Dandenong Magistrates Court	19/07/2016	Fraud use general ID mark auth/REQ-RSA; Fraud use identifying no. auth/REQ-RSA; Unlicensed driving	Aggregate 2 months imprisonment, concurrent; 1 month imprisonment. Concurrent;
Forge identifying number auth/REQ by RSA; Fail to answer bail: Possess cannabis; Use Cannabis; State false name when requested; State false name or address	Convicted and discharged (cannabis charges) Convicted and discharged (false name and address charges)
Dandenong Magistrates Court	09/12/2015	Contravene Community Corrections Order; Threat to inflict serious injury; Unlawful assault; State false name when requested; Ex. Prescribed conc. 3 hrs – breath – drive vehicle; Unlicensed driving; Intentionally damage property; Fail to answer bail; Burglary; Theft; Contravene Family Violence Intervention Order Resist protective services officer	Proven Corrections order: Order varied. Convicted. Corrections order for 12 months to undergo assessment and treatment
Dandenong Magistrates Court	09/12/2015	Contravene family violence final intervention order	Aggregate 10 days imprisonment
Dandenong Magistrates Court	02/09/2015	Threat to inflict serious injury; Unlawful assault; Intentionally damage property; Contravene family violence intervention order; State false name when requested; Unlicensed driving; Fail to answer bail; Theft; Resist protective service officer; Ex. Prescribed conc. 3 hrs – breath – drive vehicle;	Aggregate 11 days imprisonment, concurrent; Community Corrections Order, 12 months x 3; Supervision; Undergo treatment and testing for alcohol abuse and dependency; Mental health assessment and treatment; Offending behaviour treatment and rehabilitation; Continued engagement with Afri- Aus Care Inc; Complete men’s behaviour change program
Dandenong Magistrates Court	02/09/2015	Burglary; Possess cannabis	Corrections Order, 12 months Supervision; Undergo treatment and testing for alcohol abuse and dependency;
Mental health assessment and treatment; Offending behaviour treatment and rehabilitation; Continued engagement with Afri- Aus Care Inc; Complete men’s behaviour change program; Order that the respondent be directed to undergo a forensic procedure for the taking of an intimate sample from any part of his body pursuant to 464ZF(9)(a) of the Crimes Act 1958
Dandenong Magistrates Court	13/10/2011	Intentionally destroy property; Make threat to kill; Assault with weapon; Unlawful assault; Fail to answer bail; Carry dangerous article in public place: Possess controlled weapon without excuse	Aggregate 6 months imprisonment. Partially suspended. Sentence to be served 3 months Concurrent x 3; Pay compensation $400; Forfeiture order made by consent. Order all Property/s seized be forfeited and destroyed.
Dandenong Magistrates Court	13/10/2011	Intentionally damage property	Aggregate 6 months imprisonment. Partially suspended. Sentence to be served 3 months Concurrent; Pay compensation $120; Fined aggregate $500
Dandenong Magistrates Court	13/10/2011	Failure to comply with CBO (Community Based Order)	Proven
Sunshine Magistrates Court	22/01/2010	Drive at speed dangerous	Convicted - Community Based Order for 6 months; To undergo assessment for programs to reduce re- offending and participate in such programs as directed by a Community Corrections Officer; To be under the supervision of a Community Corrections Officer;

1. The Applicant’s offences have involved violent incidents and aggressive acts against not only random members of the public, but also his family members. Sentencing remarks are not before the Tribunal for pre-2017 offences. However, the following observation by Magistrate Vandersteen in his sentencing remarks in September 2017 is indicative of the Applicant’s non-compliance prior to 2017:

   [the Applicant] has not responded to anything that's been put in place for him. He's received immediate terms of imprisonment, albeit relatively short, the most three months for family violence. He's been on CCOs which have not been complied. He doesn't necessarily comply for intervention orders.

2. Magistrate Vandersteen also noted that the Applicant’s offending ‘has escalated’ and ‘demonstrates a pattern of being a repeat family violence offender, not pleading guilty, seeking a sentencing indication, breached every court order and he continues to offend’.

3. The Applicant’s ‘particularly serious crimes’ identified above were aggravated by the fact that his violent, intimidatory and menacing conduct was largely unprovoked and targeted at members of the public and his family who are entitled to safety in going about their daily lives and to not be subjected to assault. Furthermore, he committed acts of violence whilst his children were present.[16]

   [16] Respondent’s SFIC at [25].

4. In his sentencing remarks about the Applicant’s repeated family violence offences against his previous partner, Magistrate Vandersteen observed:

   She is always at risk of you. She is the mother of your child. There is times where I have indicated to you, even two years ago, that you were very much at risk of causing her significant harm. She needs to be protected from you as do the children…The risk of the complainant here being seriously injured or killed by him is very high by the repetitive nature of the offending, and also the nature of it per se, particularly on the last incident grabbing around the throat and squeezing…There just becomes a day in which she will be seriously injured or killed by him.

5. The numerous terms of imprisonment to which the Applicant has been sentenced since July 2011 through to 2017 indicate the objective seriousness of his offending. In the sentencing remarks of in September 2017, Magistrate Vandersteen found that a term of imprisonment was the only appropriate sentence given the Applicant’s repeated offending and for the protection of others. This further indicates the objective seriousness of his criminal offending.

   Length of the sentence imposed

6. Following his first conviction in January 2010, the Applicant received a six-month probation order, which he breached within months. Over the following decade, the Applicant received fines, community service, probation orders and both non-custodial and custodial sentences. Overall, the record during this period is marked by a pattern of non-compliance with community-based orders and bail conditions.

7. The Applicant has contended that his criminal history and offending is consistent within the context of his alcohol and drug dependency and over the whole of the Applicant’s criminal history the longest term of imprisonment he has been sentenced to is a combined sentence of 12 months, with a four-month non-parole period, for the offences of Unlawful assault, Contravening a Family Violence Interim Intervention Order, and Failure to answer bail in 2017. The Tribunal acknowledges that these offences, however, do not fall within the definition of particularly serious crime under the Act, and did not by themselves engage s 36(1C)(b).

8. The Applicant contends that for each ‘particularly serious crime’ of which he has been convicted, the Applicant has received sentences substantially below the maximum, often at the lower end of the scale.

9. The terms of imprisonment imposed on the Applicant in October 2011, September 2015 and December 2015 respectively, were at the low end of the range in relation to the offences. 

10. However, the Tribunal notes that the offences of Threat to kill and Intentionally damaging property of which the Applicant was convicted in October 2011, each carry a maximum penalty of 10 years’ imprisonment. For these offences the Applicant received an aggregate sentence of six months’ imprisonment with three months suspended for the offences.[17]

    [17] Intentionally destroying or damaging property, contrary to s 197 of the Crimes Act 1958 (Vic)- an offence that carries a maximum penalty of 10 years imprisonment. Making a threat to kill, contrary to s 20 of the Crimes Act 1958 (Vic)- - an offence that carries maximum penalty of 10 years imprisonment.

11. In September 2015, the Applicant was convicted for the offence of making a Threat to inflict serious injury, which carries a maximum penalty of five years’ imprisonment.[18] The Applicant received a sentence of 11 days’ imprisonment and a CCO. After the Applicant breached this Order, the Applicant was re-sentenced for making a Threat to inflict serious injury, amongst other offences, and received an aggregate three-month custodial sentence.

    [18] Making a threat to inflict serious injury, contrary to s 21 of the Crimes Act 1958 (Vic)- — an offence that carries a maximum penalty of 5 years’ imprisonment.

12. The sentences imposed for these serious crimes, do indicate the offences fall towards the lower end of the spectrum. However, imposing a custodial sentence of imprisonment is generally a sentence of last resort. In PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] the Tribunal noted that:

    [s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.

13. Noting this observation, whilst accepting that the sentences imposed on the Applicant were at the low end of the range, the Tribunal finds that the imposition of a term of imprisonment is an objective indicator of the seriousness of his offending.

    Mitigating and aggravating circumstances

14. The Applicant’s particularly ‘serious crimes’ were aggravated by the fact that they involved unprovoked attacks directed against members of the public and his family members.  Magistrate Vandersteen noted that there were multiple aggravating factors relevant to the Applicant’s offending, including that he had failed to comply with undertakings and continued to re-offend despite being given multiple sentences. Magistrate Vandersteen further considered that the nature of the Applicant’s offences, and the significant impact on his family members and their ongoing safety due to his high risk of re-offending, were also aggravating factors. 

15. The Applicant contends his criminal history is dominated by offences that do not fall within the scope of ‘serious crimes’ such as driving, property and dishonesty offences along with numerous instances of failing to answer bail which is consistent with his offending occurring within the context of his alcohol and drug dependency.[19]

    [19] Applicant’s SFIC at [33].

16. The Applicant contends that his childhood, mental health and substance abuse issues are factors that mitigate the seriousness of his offending.[20] On the basis of the psychological reports of Mr Edwin Kleynhans, the Tribunal accepts that the Applicant has been diagnosed with Substance Abuse Disorder(s) (cannabis and ice), Depression, an Adjustment Disorder as well as a Generalised Personality Disorder exhibiting anger, stress and anxiety, and that he had an extremely traumatic childhood in South Sudan. The Tribunal further accepts that a combination of these factors has significantly contributed to his offending.  However, these factors do not lessen the objective seriousness of the Applicant’s criminal offending, nor do they decrease the likelihood that he will pose a danger to the community, particularly when the evidence indicates that his mental health conditions and drug dependence remain insufficiently addressed. 

    Extent of the criminal history, period over which prior crimes took place, and criminal record as a whole

    [20] Applicant’s SFIC at [39].

17. The Minister contends that the Tribunal should have regard to the entirety of the Applicant’s offending, not just the crimes that constitute ‘particularly serious crimes’ under s 5M of the Act. In WKCG, Deputy President Tamberlin found at [29] that the words ‘having been convicted’ in s 36(1C)(b) do not limit the inquiry to danger of a kind associated with the offence(s) constituting a ‘particularly serious crime’. This reasoning was adopted by the Tribunal in MVLW at [44] and MHCZ [2019] AATA 4259 at [20] and is respectfully adopted by this Tribunal.

1. The Applicant arrived in Australia in June 2006 at the age of 19 years. His first conviction was recorded in January 2010 for Driving at dangerous speed. He was given a Community Based Order for this conviction, however, was found to have failed to comply with this order to which he was made subject following him being found guilty in October 2011 with Intentionally destroy property; Make threat to kill; Assault with weapon; Unlawful assault; Fail to answer bail; Carry dangerous article in public place; and Possess controlled weapon without excuse.

2. There was a gap in offending following the convictions in October 2011, before fronting Court again in September 2015. In the years following until he was transferred to immigration detention in 2017, the Applicant was convicted of offences in every year.  During the period of October 2011 to December 2017, the Applicant was found guilty of some 50 discrete offences, for which 24 convictions were recorded. A not insignificant number of these convictions related to the Applicant’s repeated violation of probation, community service orders, and suspended sentences resulting in terms of imprisonment.  The extent of the Applicant’s criminal history, the period of time over which he offended, and his criminal record in its totality weigh strongly in favour of a finding that the Applicant is a danger to the community.

   Prospects of rehabilitation, risk of re-offending and recidivism and the likelihood of relapsing into crime

   Prospects of rehabilitation

3. The Applicant contends that ‘detention has provided him the opportunity to take significant steps towards rehabilitation’ and that ‘he has gained insight into his past offending and the need to address the underlying causes of his behaviour’.[21]

   [21] Applicant’s SFIC at [48].

4. The Tribunal notes the psychologist’s report of Mr Edwin Kleynhans dated 23 May 2019, on which the Applicant relies,[22] in which Mr Kleynhans relevantly states:[23]

   42. I am of the opinion that risk factors (i.e that he engaged in criminal behaviours for 7 years), can be addressed by intensive psychological and drug therapy. Given my opinion that he suffers from a Personality Disorder, I am recommending intensive Dialectical Behavioural Therapy (DBT) over a period of 18 months with a review at the end.

   43. I am of the opinion that he could address a sense of responsibility, he will be in a better place in terms of decision making and becoming more responsible which he never really learned as he was growing up. He can get this from DBT as well as participating in anger management group counselling. I am of the opinion that he developed maladaptive personality style which I believe played a role in his offending behaviour in criminal matters. Moreover, he was also a substance abuser which was another contributing factor for his criminal behaviour. Having worked with substance abusers over the years, I became aware of the fact that this client group tend to get involved in criminal activity under the influence.

   44. Anger management will also assist him in managing the relationship with his current partner better. I understand that he had some schooling. Moreover, according to his mother, he has a good work ethic as he helped her financially raise his siblings as a single parent. This will also reduce factors. He told me that he also wants to work. However, I would like to qualify the aforementioned by  my suggestion that urine testing be made compulsory and that he gets ongoing drug and alcohol counciling.

   45. The only risk factors are clinical factors such as his abuse of substances and having committed the considerable number of offences whilst under the influence a combination of narcotics which was a vicious cycle, he had difficulty breaking out of.

   46. Hence, I would suggest an intense psychological/drug treatment programme spanned over 18 months which should be made mandatory. That is, I recommend that should be compulsory.

   [22] Applicant’s SFIC at [39].

   [23] T-Documents T8/ 322-323.

5. As Mr Kleynhan’s report states, for the risk factors to be addressed, the Applicant should undertake an ‘intense psychological/drug treatment programme spanned over 18 months which should be made mandatory’.

6. The Applicant has not undergone any such programme[s]. The Applicant relies on his time spent in detention and the enforced subsequent period of sobriety and abstinence from drug use it has brought as demonstrating ‘steps towards rehabilitation’.

7. Furthermore, the Applicant relies on this period of detention to demonstrate a period of appropriate, non-violent behaviour.

8. The evidence before the Tribunal is that a significant contributor to the Applicant’s aggressive and violent criminal offending is his alcohol dependence and significant drug abuse problem. 

9. The Applicant’s evidence to the Tribunal is that he has not used any illicit drugs since entering detention.[24] The Tribunal notes, however, that there have been several reported and documented incidents where drugs or drug-related items were found in the Applicant’s room.[25] On one occasion the Applicant admitted to prison officers that the drugs found in his cell were his, although he later said that this admission was false.[26] When questioned about this by the Respondent in cross examination, the Applicant stated they belonged to someone else and that he wanted to avoid conflict with that person as he had been involved in previous altercations with them.

   [24] Transcript of Proceedings dated 25 February 2021 p 19 at [15].

   [25] T-Documents T11/281.

   [26] Applicant’s SFIC at [42]-[47].

10. However, given the Applicant’s longstanding substance dependency which has not been addressed, the Tribunal does not consider the Applicant’s explanation to be plausible. The Tribunal is of the view that it is more likely that the drugs and drug related items found in the Applicant’s room or near his person were his.

11. The Tribunal acknowledges the Applicant’s claim that ‘he is committed to remaining sober if he is released and will seek out counselling and education to assist him to do that’. The Tribunal also acknowledges the statement and oral evidence at hearing given by Ms SL of Afri-Aus Care. Ms SL stated that her organisation will provide support to the Applicant if he is released back into the community by assisting him with an appointment to a General Practitioner to  assess his physical and mental well-being in order to obtain relevant referrals for support. Additionally, she stated that they would also assist him with an application under the National Disability Insurance Scheme to better enable him access to counselling services and psychological support.

12. The Tribunal notes that Afri-Aus Care assisted the Applicant in the past. However, the assistance provided has not been successful in addressing the Applicant’s issues. As remarked by Ms SL in her written statement, at the time the Applicant attended Afri-Aus Care, ‘he was not in the right position or frame of mind to properly rehabilitate and return to a more positive life path’. Ms SL further stated that during previous attempts to assist the Applicant he was yet to properly detox from drugs and alcohol and lacked the insight into his behaviour and determination to rebuild his life however that he now has after three years of criminal or immigration detention.[27]

    [27] Statement of SL dated 23 December 2020 at [9].

13. Based on the evidence before it, however, the Tribunal cannot be satisfied that the Applicant has made adequate progress towards being rehabilitated in relation to his substance abuse. It does not consider a period of enforced abstinence and a period of self-reflection upon behaviour through detention as a substitute for a professionally administered and supervised psychological/drug treatment programme. As was recommended by Mr Kleynhans, such a programme should be mandatory and span over 18 months.

14. The Tribunal is also of the view that the conditions in which the Applicant finds himself during detention are markedly different than being in the Australian community. He is currently continually supervised. The triggers and access to alcohol and drugs have been removed. If he were to return to the Australian community, he would once again be exposed to these triggers without the benefit of having undergone intensive psychology and drug therapy to reduce risk relapse and re-offending.

15. Accordingly, the Tribunal finds that the Applicant has not sufficiently rehabilitated such that it can be confident that he will not continue to relapse into drug abuse should he re-enter the community. In light of the strong causal link between the Applicant’s substance abuse and his criminal offending, the Tribunal is not satisfied that he will not pose a ‘danger to the Australian community’ should he continue on his path to recovery when unsupervised in the community. The Tribunal is therefore consequently of the view that faced with difficulty similar to that confronting him in the past, the risk of this Applicant again falling back into the commission of similar or identical offending is now only marginally lower than what it was when he entered criminal custody and immigration detention.

    Risk of re-offending and recidivism

16. The Applicant contends that he has a number of strong motivations against re-offending, being his desire to have a close relationship with his two children, his mother and siblings  and his fear of harm if he were returned to South Sudan.[28] In addition, he claims that the hardship he has endured by the long periods of immigration detention act as a strong incentive for him not to re-offend should he be permitted to remain in Australia.[29] 

    [28] Applicant’s statement dated 23 December 2020 at [23].

    [29] Applicant’s SFIC at [29].

17. The Applicant has also contended he is on good terms with his former partner and claims in relation to the care of their children, stating ‘it will not be difficult for us to negotiate an arrangement for their care that puts their best interest first’. However, there is no contemporary information before the Tribunal from the Applicant’s former partner to support such a statement.

18. The Tribunal also acknowledges the Applicant’s family support. His brother gave evidence at the hearing that he would support the Applicant in any way he can. The brother told the Tribunal that he believed the Applicant had changed and he did not think he would reoffend.  The Tribunal has written statements from the Applicant’s siblings other family members. These statements indicate that the family members have genuine connections and care for each other.

19. The Applicant has made multiple claims that with the support of his family he would not relapse. It is not lost on the Tribunal that he had this support previously (as well as from Afri-Aus Care), yet it did not deter him from his drug abuse. These support mechanisms were not enough to prevent the Applicant from substance abuse or offending in the first instance, the Tribunal therefore has real doubts they would be enough in the future if the Applicant were to relapse.

20. The evidence before the Tribunal is that the Applicant has frequently cited his desire to be with his children and family as a factor strongly motivating him not to re-offend. 

21. The Applicant has asserted that he would not engage in further offending. The Tribunal, however, cannot accept this assertion in any form. The Tribunal is of the view that it is best informed of his likelihood of re-offending by assessing past patterns of behaviour. His custodial sentences have also not deterred him from re-offending. Further, and taking into consideration the admitted fact that substance abuse is a trigger to the Applicant’s offending – in regards to which the Tribunal is not satisfied he is rehabilitated – the only reasonable conclusion that can be drawn is that the Applicant is likely to engage in further criminal conduct.

    Likelihood of relapsing into crime

22. The Tribunal accepts that the Applicant’s assertions made in his representations to the Department and in his evidence and submissions to the Tribunal are genuine, and that he sincerely intends not to re-offend and believes that he will not engage in further criminal conduct.

23. The Tribunal also acknowledges the courses the Applicant has undertaken to improve his employability and his desire to operate a cleaning business.

24. However, the fact that the Applicant’s substance abuse condition remains untreated, it cannot be said with any confidence that he would obtain the help he needs if he were permitted to re-enter the community. If the Applicant were granted a Protection visa, he would resume his life without the restrictions or supervision requirements associated with release on parole.  There will be no orders in place requiring him to continue with a treatment programme or to report to a hospital or a mental health practitioner for regular monitoring of his progress.

25. Based on an evaluation of the factors identified by Deputy President Tamberlin in WKCG,[30] the following is a summary of the Applicant’s behaviour and circumstances which support a finding that he presents a real and significant possibility of ‘danger to the Australian community’:

    (a)The nature and seriousness of some of the Applicant’s offences, which includes menacing and violent acts against random members of the public and his family members;

    (b)The aggregate terms of imprisonment imposed on the Applicant in September 2017, July 2016, December 2015, September 2015 and October 2011, noting that a term of imprisonment is a sentence of last resort;

    (c)The Applicant’s repeated failure to comply with court orders and bail undertakings and his re-offending despite being given multiple suspended sentences;

    (d)The extent of the Applicant’s offending, including family violence offences;

    (e)The strong causal relationship between the Applicant’s substance abuse and his criminal offending, and the absence of intensive psychology and drug therapy to reduce risk as was recommended by psychologist Mr Kleynhan as mandatory; and

    (f)The Applicant’s risk of re-offending and recidivism and the likelihood of him relapsing into crime, the high risk that when unsupervised in the community he will not engage with the drug and psychological treatment program he requires, and the likelihood that he will be unable to control his anger causing him to again engage in criminal offending causing harm to members of the Australian community.

    [30] WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 [26]; discussed above at [38].

    CONCLUSION

26. For the reasons outlined above, the Tribunal finds that the criterion in s 36(1C)(b) of the Act is satisfied for reasons that the Applicant:

    (a)Has been convicted by a final judgment of a particularly serious crime; and

    (b)Is a danger to the Australian community.

    DECISION

27. The Reviewable Decision of the delegate of the Respondent dated 21 September 2020 to refuse the Applicant a Protection (Class XA) (Subclass 866) visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 88 (eighty- eight) paragraphs are a true copy of the reasons for the decision of Ms C Burnett-Wake, Member.

....................[sgd]...................................................

Associate

Dated: 22 October 2021

Dates of hearing:

25 and 26 February 2021

Advocate for the Applicant:

Solicitor for the Applicant

Ms Esther Pearson

Asylum Seeker Resource Centre

Advocate for the Respondent:

Ms Emily Nance

Solicitor for the Respondent: 

Australian Government Solicitor

Exhibit Annexure (“A”)

2020/5942 CYTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Exhibits’ Number	Description of Exhibits
1	T-Documents lodged on 30 October 2020
2	Applicant’s Statement of Facts, Issues and Contentions dated 23 December 2020
3	Respondent’s Statement of Facts, Issues and Contentions dated 5 February 2021
4	Applicant's Submissions in Reply dated 19 February 2021
5	Statement of the Applicant dated 23 December 2020
6	Statement of JA dated 23 December 2020
7	Statement of SL dated 23 December 2020
8	Signed Statement of the Applicant dated 4 January 2021