DBKX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 673
•4 April 2023
DBKX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 673 (4 April 2023)
Division:GENERAL DIVISION
File Number: 2022/5148
Re:DBKX
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:4 April 2023
Place:Melbourne
The Tribunal affirms the decision under review made by a delegate of the Respondent on 9 June 2022 to refuse to grant the Applicant a protection (class XA) (subclass 866) visa on the basis that he does not satisfy subsection 36(1C) of the Migration Act 1958 (Cth).
...................................[sgd].....................................
Dr L Bygrave, Member
Catchwords
MIGRATION – decision to refuse to grant a protection visa – Migration Act 1958 (Cth) s 36(1C) – whether Applicant convicted by a final judgement of a particularly serious crime – whether Applicant a danger to the Australian community – definition of ‘danger’ – criminal history – prospects of rehabilitation – decision affirmed
Legislation
Migration Act 1958 (Cth)
Crimes Act 1958 (Vic)
Cases
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 514
DOB18 v Minister for Home Affairs (2019) 269 FCR 636
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1
SLGS v Minister for Immigration, Migrant Services and Multicultural Affairs [2022] FCA 1055
WKCG and Minister for Immigration and Citizenship [2009] AATA 512Secondary Materials
Convention relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 137 (entered into force 22 April 1954).
Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
REASONS FOR DECISION
Dr L Bygrave, Member
4 April 2023
INTRODUCTION
The Applicant, DBKX, is 44 years old and a citizen of Sudan. He arrived in Australia on 30 May 2006 with his former wife and their daughter after he was granted a refugee (class XB) (subclass 200) visa (refugee visa) on 4 September 2005.
The Applicant was notified in writing on 21 November 2018 that his refugee visa had been mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act). A delegate of the Minister[1] made a decision not to revoke the mandatory cancellation of the Applicant’s refugee visa and the General Division of the Administrative Appeals Tribunal (the Tribunal) (differently constituted) affirmed this decision on 25 February 2020.
[1] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.
The Applicant then lodged an application for a protection (class XA) (subclass 866) visa (protection visa) on 27 October 2020 with the assistance of a not-for-profit organisation.[2]
[2] The Applicant previously lodged an application for a protection visa on 7 April 2020, but this application was deemed invalid on 16 April 2020.
On 9 June 2022, a delegate of the Minister made a decision to refuse to grant a protection visa to the Applicant under section 65 of the Act. The delegate determined that the Applicant ‘is a person in respect of whom Australia has protection obligations’ as provided for in paragraph 36(2)(a) of the Act but decided that he does not satisfy the criterion in subsection 36(1C) on the basis that he ‘is a person who has been convicted by a final judgment of a particularly serious crime/s and is a danger to the Australian community’.[3]
[3] Exhibit T-T2, 62.
On 17 June 2022, the Applicant lodged an application with the Tribunal to review the decision of the Minister’s delegate made on 9 June 2022.
The matter was heard in Melbourne on 23 February 2023. The Applicant did not have legal representation; he attended the hearing in person and provided oral evidence with the assistance of an interpreter of the Arabic language.
RELEVANT LEGISLATION
The grant of a protection visa
The decision to grant, or not to grant, a visa is stipulated in section 65 of the Act: subsection 65(1) provides that the Minister is to grant a visa if, after considering a valid application for a visa, they are satisfied that:
(a)the health criteria (if any) for the visa have been satisfied; and
(b)the other criteria for the grant of the visa prescribed in the Act or regulations have been satisfied; and
(c)the grant of the visa is not prevented by other sections of the Act; and
(d)any visa application charge payable has been paid.
If not so satisfied, the Minister is to refuse to grant the visa.
The grant of a protection visa requires an applicant to meet the criteria set out in section 36 of the Act, which relevantly states:
Protection visas – criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
[emphasis added]
The statutory context of subsection 36(1C) of the Act is significant in relation to Australia’s international obligations as a signatory to the 1951 Convention relating to the Status of Refugees[4], as amended by the 1967 Protocol relating to the Status of Refugees[5] (together the Refugees Convention). Article 33 of the Refugees Convention states:
Article 33 prohibition of expulsion or return (‘refoulement’)
1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
[emphasis added]
[4] Opened for signature 28 July 1951,189 UNTS 137 (entered into force 22 April 1954).
[5] Opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
Subsection 36(1C) was inserted into the Act, amongst other amendments, in the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Paragraphs 1234–1236 of the explanatory memorandum to this amending Bill described the purpose of subsection 36(1C) as follows:
1234. … New subsection 36(1C) provides that a criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
- is a danger to Australia’s security; or
- having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
1235. New subsection 36(1C) is therefore a criterion that excludes a refugee from the grant of a protection visa.
1236. New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention. As such, a person who is captured by new subsection 36(1C) will not engage Australia’s non-refoulement obligations under the Refugees Convention or for the purposes of the new statutory framework relating to refugees.
[emphasis added]
Relevant to the matter before the Tribunal, subparagraph 36(2C)(b)(ii) of the Act also provides that a non-citizen is ineligible for grant of a protection visa if:
(b) the Minister considers, on reasonable grounds, that:
(i) the non-citizen is a danger to Australia’s security; or
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
[emphasis added]
Section 5M of the Act defines ‘a particularly serious crime’, as used in paragraph 36(1C)(b) and subparagraph 36(2C)(b)(ii) of the Act, to include ‘a reference to a crime that consists of the commission’ of a ‘serious Australian offence’ or a ‘serious foreign offence’.
I note that there is no evidence that the Applicant has engaged in a ‘serious foreign offence’, and so this limb of ‘a particularly serious crime’ is not relevant to this matter.
A ‘serious Australian offence’ is defined in section 5 of the Act as ‘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.
[emphasis added]
CONSIDERATION
The issue in this matter is whether the Applicant meets the criterion for a protection visa in subsection 36(1C) of the Act. As I find no evidence before the Tribunal that the Applicant is ‘a danger to Australia’s security’ (paragraph 36(1C)(a) of the Act), the sole issue for determination is whether the Applicant satisfies the requirement of paragraph 36(1C)(b) of the Act, that is:
(a)whether the Applicant has been convicted by a final judgement of a particularly serious crime; and, if so,
(b)whether the Applicant is a danger to the Australian community.
I have had regard to the recent decision of Abraham J in the Federal Court of Australia, SLGS v Minister for Immigration, Migrant Services and Multicultural Affairs[6] (SLGS), in which her Honour confirmed that paragraph 36(1C)(b) of the Act comprises a two-stage process; first, the person must have been convicted by a final judgment of a particularly serious crime and, ‘[i]t is only on the establishment of that premise that the second stage [to determine whether the person is a danger to the Australian community] is engaged’.[7]
[6] [2022] FCA 1055.
[7] Ibid [58].
A. HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGEMENT OF A PARTICULARLY SERIOUS CRIME?
The Applicant’s criminal record is detailed in an Australian Criminal Intelligence Commission (ACIC) report dated 7 August 2019.
On [redacted] May 2011, the Applicant was convicted in the [redacted] Magistrates Court of the offence, ‘recklessly cause injury’ (two charges), in accordance with the Crimes Act 1958 (Vic) (the Crimes Act).[8] He was again convicted of this same offence in the [redacted] Magistrates Court on [redacted] August 2014.
[8] Exhibit T-T3, 186.
Relevantly, section 18 of the Crimes Act states that the offence of recklessly cause injury incurs a maximum penalty of ‘level 6 imprisonment (5 years maximum)’.
I am satisfied that the offence of recklessly cause injury is a ‘serious Australian offence’ as defined in section 5 of the Act, because the offence involves violence against a person and is punishable by imprisonment for a maximum term of not less than three years.
Based on the evidence, I find the Applicant has been convicted by a final judgement of at least one particularly serious crime.
I now turn to considering whether the Applicant is a danger to the Australian community.
B. IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?
Case law relevant to determining whether a person is a danger to the Australian community
The statutory interpretation of the phrase, ‘a danger to the Australian community’, has been the subject of extensive case law.
In the Tribunal decision of WKCG and Minister for Immigration and Citizenship[9] (WKCG), Deputy President Tamberlin articulated that the question of whether a person constitutes a danger to the Australian community is ‘one of fact and degree’ and ‘regard must be had to all the circumstances of each individual case’.[10] Deputy President Tamberlin set out that relevant considerations included:
·the seriousness and nature of the crimes the person committed, the length of sentences imposed, and any mitigating or aggravating circumstances;
·the person’s criminal history in totality, including the extent and nature of his prior crimes, and the period over which they took place;
·the person’s risk of re-offending and recidivism, and the likelihood of relapsing into crime; and
·the person’s prospects of rehabilitation, which ‘goes to the future conduct of the person’, ‘consideration of character’ and the possibility of any ‘threat’ that could be posed to a member or members of the Australian community’.[11]
[9] [2009] AATA 512.
[10] Ibid [25].
[11] Ibid [26].
Deputy President Tamberlin further observed that the use of the word ‘danger’ suggests that it is ‘sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community’ as the provision is ‘designed to protect the community from both immediate harm and harm in the reasonably foreseeable future’.[12] [emphasis added]
[12] Ibid [31].
I have also had regard to the following decisions in the Federal Court of Australia that provide direction in relation to the level of risk implied by the use of ‘danger’ in paragraph 36(1C)(b) of the Act.
In the decision of DOB18 v Minister for Home Affairs[13] (DOB18), Logan J stated:
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 that [sic] just “risk”.[14]
[emphasis added]
[13] (2019) 269 FCR 636.
[14] Ibid [83].
In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[15], Bromberg J clarified the level of risk that needs to be attained within the context of a person in need of protection:
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) 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.[16]
[emphasis added]
[15] (2020) 279 FCR 1.
[16] Ibid [54]-[55].
Collier J, in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[17], reviewed the statements in WKCG and DOB18; her Honour considered these ‘do no more than provide guidance in respect of the ordinary meaning of the words in that section’[18] and concluded that there is no ‘material conflict between the legal principles as explained in WKCG and Logan J in DOB18’.[19]
[17] [2022] FCA 514.
[18] Ibid [38].
[19] Ibid [46].
Most recently, Abraham J in SLGS referred to prior Federal Court of Australia decisions that had considered the degree of risk and the construction of whether a person is a danger to the Australian community. Her Honour stated she did:
not accept that the phrase “the Australian community” in s 36(1C)(b), means that there must be a danger to “the whole of the Australian community” (and not less than, including a segment of the community), in the manner contended by the applicant. What constitutes a danger to the Australian community stands to be determined upon the facts and circumstances of individual cases. A person may pose a danger to the community by harming individuals within that community.[20]
[emphasis added]
[20] [2022] FCA 1055 [59].
Evidence about the Applicant’s personal history and family circumstances
At the outset of this section about the Applicant’s personal history, it is relevant to record that evidence provided by the Applicant about his personal history and family circumstances has contained inconsistencies. This was observed in both the decision made by the Tribunal on 29 May 2020 and the decision of the delegate of the Minister dated 9 June 2022, which comprehensively set out these inconsistencies and the Applicant’s written responses to these inconsistencies. At the hearing on 23 February 2023, I observed aspects of the Applicant’s oral evidence, and his recollection of incidents and relationships was again inconsistent with information about his circumstances that he has previously provided.
In view of the Applicant not having legal representation and the evidence that he has a long-standing history of mental health, a drug abuse disorder and sustained a brain injury in 2004 (detailed further below), I have carefully and extensively reviewed all the documentary evidence filed with the Tribunal. I am satisfied the findings of fact contained in the decision by the Minister’s delegate on 9 June 2022 are supported by the available documentary evidence and provide a record about the Applicant’s history and personal circumstances that is as accurate as possible in the circumstances.[21] For completeness and procedural fairness to the Applicant, I have also included relevant information provided by the Applicant in his oral evidence on 23 February 2023.
[21] Exhibit T-T2, 18-23.
The Applicant’s childhood and family
The Applicant was born in 1978 and raised in Khartoum, Sudan. He identifies as Arabic Sudanese and Muslim. He speaks, reads and writes Sudanese Arabic, and speaks English.
The Applicant’s father was a member of a separatist group in Sudan and assassinated when the Applicant was about 15–16 years old. After the Applicant finished high school, he served in the military in Sudan and was deployed to guard an oilfield in the Darfur region of Sudan. He subsequently escaped from the military camp and travelled to Egypt.
The Applicant’s parents are deceased. He has a brother and an adopted half-sister living in Sudan, and four siblings who live outside Sudan. He is not in contact with any of his siblings.
The Applicant’s former wife is an Australian citizen and lives in Australia. The Applicant and his former wife arrived together in Australia in 2007; however, they separated in 2008 and divorced in 2010, and are now estranged. Family violence intervention orders prohibited the Applicant from contacting or being near to his former wife in the period prior to his arrest and conviction in August 2018.
The Applicant and his former wife have a daughter who is 20 years old and a citizen of Australia. The Applicant has not seen his daughter in person since approximately 2011. The Applicant told the Tribunal that he resumed contact with his daughter by mobile phone in 2022; he said his daughter had been living in Egypt, but she is now residing with some members of his family and attending high school in Sudan. I note that this evidence is not consistent with information previously provided by the Applicant about his contact with his daughter and any of his family members in Sudan.
The Applicant’s health
The Applicant was first diagnosed with schizophrenia in Australia in 2006–2007, when he was hospitalised for the treatment of tuberculosis and required support from mental health services.[22] However, he experienced mental health symptoms while he lived in Egypt and has previously stated that he has had ‘ongoing mental health problems throughout [his] life’.[23] In his evidence to the Tribunal, the Applicant said he has had mental health issues since he was sexually assaulted as a child in Sudan.
[22] Exhibit T-T3, 318.
[23] Exhibit T-T3, 237.
The Applicant has been admitted to hospital to receive treatment for his mental health, including electroconvulsive therapy, on multiple occasions since 2007 and for ‘at least a couple of months every year’.[24] The Applicant’s symptoms have improved when he receives and is compliant with his prescribed medication and worsen during periods of homelessness and food insecurity. International Health and Medical Services (IHMS) records dated September 2019 and the Applicant’s oral evidence on 23 February 2023 stated that his mental health is currently being successfully treated with psychotropic medications.[25]
[24] Exhibit T-T3, 237.
[25] Exhibit T-T29, 1158.
The Applicant sustained a brain injury, and a broken hand and leg, in a car accident in Egypt in 2004, and he has continued to suffer from impaired thinking, memory loss and headaches since this accident.
The Applicant has been diagnosed with, and receives treatment for, hepatitis A, B and C, Human Immunodeficiency Virus (HIV), chronic back pain and asthma.
The Applicant was diagnosed with drug abuse disorder and used heroin, methamphetamine and marijuana. The Applicant told the Tribunal he has stopped using drugs and alcohol since he was incarcerated in August 2018.
The Applicant’s oral evidence to the Tribunal regarding his current and future circumstances
At the hearing on 23 February 2023, the Applicant consistently referred to notes he had handwritten in a book that he read out in answer to questions. Unfortunately, this meant the Applicant’s answers did not always correspond to the questions he was asked.
The Applicant told the Tribunal that his ‘story is full of sadness and adventures’ and ‘no one understands [his] personality’. He said his health is ‘deteriorating’ and referred to his diagnoses of HIV, hepatitis, high blood pressure and cholesterol. The Applicant said his ‘dream’ is to be an ‘active person in society’ and he had a plan to be ‘prominent and successful’. He acknowledged that he had only been employed in Australia as a trolley collector in 2008 and a truck driver in 2009–2010.
The Applicant provided contrary views to the Tribunal about his diagnosis and treatment of schizophrenia. He disputed that he has schizophrenia, although he agreed he currently receives treatment (medication) for schizophrenia. He raised concerns about the historical actions of mental health treating professionals, which he believed caused his schizophrenia, and said that his diagnosis of schizophrenia was due to the language barrier (between Arabic and English) that created ‘misunderstandings’ and ‘problems’. However, he also said he had experienced mental health problems since his childhood when he was sexually assaulted.
The Applicant’s answers to questions at the hearing about whether he would continue to seek and receive treatment for schizophrenia if he is released into the Australian community varied. He said he needs to ‘protect’ himself from ‘attacks’ by treating professionals and, while he did ‘not need a lot of medication’ now, he said he would continue to take medication and stay away from drugs and alcohol in the Australian community. He alternately said that he would go to a clinic he had attended prior to being jailed in August 2018 for assistance or that he did not require medical help.
In terms of his future plans, the Applicant told the Tribunal that he wanted to create a positive life for him and his daughter in Australia, although he acknowledged that his daughter is currently living in Sudan and they have not seen each other since 2011. The Applicant was unsure about where he would live in the community if he were released from immigration detention and alternately referred to the suburb where he used to live and another area. He said he would like to learn more English and had plans to get a job ‘driving’ and study at a technical and further education (TAFE) institute. He said he does not know anyone in the community who he could live with as he has ‘no family members’ and ‘no friends’ but thought that ‘people in the Australian system’, such as ‘community services’, would arrange housing and support for him. He referred to a case worker at the clinic he used to attend but said he has had no contact with either the case worker or the clinic since being imprisoned in August 2018.
While the Applicant appeared to show no insight into inconsistencies in his oral evidence, I am satisfied this was not intentionally misleading or deliberate. Rather, it is my view that contradictions in his evidence could be explained by his long-standing mental health issues and diagnosed schizophrenia and drug abuse disorder, and the brain injury he sustained in 2004.
Evidence about the Applicant’s criminal history
The Applicant’s criminal history is recorded in an ACIC report dated 7 August 2019 and summarised at Appendix A.
The ACIC report shows that, in the period between June 2010 and August 2018, the Applicant committed more than 150 offences and was sentenced to periods of imprisonment on 30 of the dates he appeared before the Courts. His offences included:
·violent and violence-related offences (for example: robbery, affray, make threat to kill, threat to inflict serious injury, intentionally cause injury, recklessly cause injury, unlawful assault, possess controlled weapon without excuse, threat to inflict serious injury);
·family violence-related offences (for example: persistently contravening family violence intervention orders, stalk another person);
·non-compliance with judicial orders, bail conditions and police directions (for example: failure to comply with community-based order conditions, contravene a conduct condition of bail, resist police, act in disruptive manner in police gaol);
·property offences (for example: vandalism, theft, burglary, fraud, deal property suspected proceed of crime, possess suspected stolen goods, theft of a motor vehicle);
·drug and alcohol offences (for example: possession and use of heroin, possession of cannabis and amphetamine, drunk in a public place); and
·driving offences (for example: unlicensed driving).
While I accept that some of the Applicant’s individual offences, such as ‘theft from a shop (shopsteal)’, may be viewed as relatively minor offending behaviour on their own, I consider the Applicant’s history of more than 40 charges of ‘theft from a shop (shopsteal)’ over eight years would have had a cumulative effect on police resources and the judicial system.
I find the Applicant has been convicted of serious and violent crimes, and he has received sentences of imprisonment that have not deterred him from further offending behaviour. I also find the Applicant’s most recent conviction in the [redacted] Magistrate’s Court on [redacted] August 2018 for the offence of persistently contravene family violence order shows an increase in the seriousness of his offending behaviour, which is reflected by the Magistrate sentencing him to 12 months imprisonment.
The details of this offence are set out in a ‘Victorian Police Preliminary Brief – Statement Made by Informant’ report that described the Applicant repeatedly breaching a family violence intervention order that was put in place to protect his former wife until 4 December 2019. The report stated the intervention order set out conditions including that the Applicant was excluded from having contact with his former wife or going to or remaining within 200 metres of her workplace. The Applicant breached the conditions of the intervention order and conditions of his bail on four occasions on [redacted] August 2018: he was within 200 meters of his former wife’s workplace in ‘possession of an iron bar’ and demonstrating ‘erratic and unstable behaviour’.[26] The report stated:
[The Applicant] is a danger to [the Applicant’s former wife]. He continues to breach the intervention order and there has been no condition imposed on his bail that has been effective in managing [the Applicant]. [The Applicant] has breached them all.
[The Applicant] is believed to be homeless and living on the streets in and around [the Applicant’s former wife’s] place of business.
[The Applicant] has a heroin habit and continues to use.
…
[The Applicant] has numerous priors for stalking [the Applicant’s former wife], persistently breaching the Intervention (Indictable) and contravening the Intervention Order. [The Applicant] recently received [a] term of imprisonment for breaching the intervention order, however [the Applicant] continues to breach it.
…
Police are unable to be satisfied of the safety of [the Applicant’s former wife] while [the Applicant] remains on bail or in the community. [27]
[26] Exhibit T-T3, 213.
[27] Exhibit T-T3, 213-214.
In proceedings in the [redacted] Magistrate’s Court on [redacted] August 2018, the Applicant’s lawyer referred to the Applicant’s ‘significant…mental health issues’, his diagnosis of paranoid schizophrenia and his ‘longstanding interactions with the Victorian mental health system’.[28] The Applicant’s lawyer also stated that the Applicant had been subject to ‘14 community treatment orders in recent years’ and, although ‘chronically unwell’, he was not considered ‘sufficiently unwell to warrant the making of an inpatient assessment order’.[29]
[28] Exhibit T-T3, 190-191.
[29] Exhibit T-T3, 191-192.
The Magistrate, in his sentencing remarks, observed that the Applicant’s offending was due to ‘drugs in combination with his mental health’ and stated that:
it’s sad that there isn’t some place where he can happily go that removes him from the situation where he gets free board and accommodation, where he gets – if we had a system that prescribed what he needs readily.[30]
[30] Exhibit T-T3, 196.
The Tribunal decision dated 25 February 2020 to not revoke the mandatory cancellation of the Applicant’s refugee visa outlined the factors that contributed to his criminal offending as his drug and alcohol abuse, mental health and lack of stable accommodation. The Tribunal Member considered these issues partly explained his criminal offending but observed that they did not ‘alter’ the nature or seriousness of his behaviour.[31]
[31] Exhibit T-T3, 92.
The Applicant’s oral evidence about his offending
At the hearing, the Applicant demonstrated almost no insight into his offending behaviour; in particular, he showed minimal understanding of the seriousness of his past violent offences and limited capacity to accept responsibility for his offending behaviour. For example, the Applicant denied that drugs and alcohol were a causal factor in his past offending and, when asked what did cause him to offend, he answered ‘community’ and said that other people ‘used’ him to steal items.
The Applicant also told the Tribunal that he did not breach family violence intervention orders in relation to his former wife. He described the situation as a ‘mere family dispute’ and said that his former wife ‘fabricated’ the matter and was ‘jealous’ because she ‘lost’ him. He disputed his former wife was a victim of his offending and said they were ‘both victims’.
Evidence about the Applicant’s prospects of rehabilitation
The evidence before the Tribunal shows the factors that have contributed to the Applicant’s offending have included his non-compliance with treatment for schizophrenia, his use of illicit drugs and alcohol, homelessness and food insecurity. I accept that, in the period since August 2018 when the Applicant has been in prison and immigration detention, the Applicant has not used drugs or alcohol, and has taken his medication for schizophrenia.
While in prison, the Applicant attended rehabilitation courses and he provided certificates that show he completed the ‘healthy mind module’ on 4 April 2019 and a ‘moderate intensity violence program’ (no date).[32]
[32] Exhibit T-T3, 701-702.
I have considered the available records from the Applicant’s time in prison and immigration detention from August 2018 to the present. Most recently, incident detail reports from the immigration detention centre show the Applicant was involved in an incident on 2 December 2022 in which he inflicted ‘substantial damage to Commonwealth property’ and injured himself.[33] I note that an updated report on 4 December 2022 referred to the Applicant’s ‘lack of alertness and cognition that was supported by [the] IHMS mental health team’.[34]
[33] Exhibit R1, 31.
[34] Exhibit R1, 43.
At the Tribunal hearing, the Applicant said he took ‘full responsibility’ for the incident on 2 December 2022; he said it had ‘nothing to do with his mental health’, but rather it was ‘an act’ based on ‘drama he created’ to ‘protect’ himself.
Consideration
As set out in the case law at paragraphs 23–30, in assessing whether the Applicant is a danger to the Australian community, I need to consider all the facts and circumstances of his case. I concur that the use of the word ‘danger’ in paragraph 36(1C)(b) of the Act infers that the Applicant must present a high, serious and significant risk to individuals in the Australian community.
I am satisfied the documentary evidence about the Applicant’s criminal history set out at paragraphs 49–56 shows he has committed very serious crimes including violent and violence-related offences and family violence offences. He has committed more than 150 offences over a period of eight years and been sentenced to periods of imprisonment on 30 of the occasions that he appeared before the Courts. I agree with the opinion of the Minister’s delegate that the Applicant has been provided ‘multiple opportunities to address his drug and alcohol and mental health issues, as well as multiple judicial warnings of the consequences if he failed to do so’.[35] Unfortunately, it appears that the Applicant – when not in a structured environment such as prison or hospital – ceases to take medication for his diagnosed schizophrenia, which leads to a cycle of illicit drug use and criminal offending.
[35] Exhibit T-T2, 61.
Of significant concern to me, the Applicant showed minimal insight into and no remorse for his offending behaviour in his evidence at the Tribunal hearing. In particular, he appeared unable to understand that his behaviour towards his former wife in August 2018 was violent and threatening. I consider the Applicant’s lack of insight into his behaviour highly relevant to his risk of recidivism.
I accept, however, that the Applicant’s conduct can be explained by his circumstances of long-standing issues with his mental health and compliance with treatment, diagnosed drug use disorder and brain injury. I acknowledge that these factors are further amplified by the Applicant’s background growing up in Sudan, his father’s assassination and his own military experience, and his nil contact with any members of his family and his former wife.
I have set out the evidence about the Applicant’s prospects of rehabilitation and his recent behaviour in immigration detention at paragraphs 59–62. The assessment of a person’s risk involves a process of evaluating and weighing factors that may indicate the likelihood a person will engage in future criminal conduct as well as a consideration of factors that would be expected to protect a person from future criminal conduct.
Overall, I find assessing the Applicant’s recidivism and likelihood of relapsing into crime is difficult in circumstances where the Applicant has shown minimal understanding of his past conduct. In view of the Applicant’s history, however, I consider it is more likely than not that he would stop taking medication for his diagnosed schizophrenia and resume taking drugs and alcohol outside the structured environment of a hospital/prison/detention centre.
I note the Applicant’s evidence that he has no family members or friends and knows no one in the Australian community who could provide him with support such as housing and food. I share the view set out in the Magistrate’s sentencing remarks on [redacted] August 2018 that the Applicant requires a safe place where he can receive medical care for his mental health, and free board and accommodation. However, I also note that the Applicant has been the subject of 14 community treatment orders in the past that he has not complied with.
In these circumstances, I find it extremely likely that the Applicant will relapse into criminal behaviour if he is released into the Australian community. Based on the totality of the Applicant’s criminal history, I am satisfied this would involve serious and significant harm to property and people in the Australian community, including his former wife.
Finally, I have considered the Applicant’s evidence about his relationship with his daughter and his desire to establish a positive life with her. While I accept this could be a protective factor in relation to the Applicant’s rehabilitation, I note his evidence about their relationship has not been consistent and there is no supporting evidence from his daughter about their relationship and/or plans. I further observe that the Applicant’s oral evidence to the Tribunal on 23 February 2022 was that his daughter is currently in Sudan and, if this is the case, I find she would not be is a position to provide him with support in the Australian community. I therefore must place very limited weight on the extent to which his daughter would be a protective factor to prevent him from offending in the future.
On balance, I am satisfied the Applicant presents a serious and significant risk of harming individuals in the Australian community.
CONCLUSION
Having regard to all the relevant evidence before the Tribunal, I am satisfied the Applicant has been convicted by a final judgement of a particularly serious crime and is a danger to the Australian community. For this reason, I find the Applicant’s application for a protection visa must be refused because he does not satisfy the criterion in subsection 36(1C) of the Act.
DECISION
The Tribunal affirms the decision under review made by a delegate of the Respondent on 9 June 2022 to refuse to grant the Applicant a protection (class XA) (subclass 866) visa on the basis that he does not satisfy subsection 36(1C) of the Migration Act 1958 (Cth).
I certify that the preceding seventy-four (74) paragraphs are a true copy of the written reasons for the decision of Member Dr L Bygrave
................................[sgd]........................................
Associate
Dated: 4 April 2023
Date of hearing: 23 February 2023 Advocate for the Applicant:
Applicant in Person Representative for the Respondent:
Solicitors for the Respondent:
Mr Christopher Orchard
Sparke Helmore
APPENDIX A: THE APPLICANT’S CRIMINAL RECORD
Court Court Date Offence Court Result [redacted] Magistrates Court [redacted] Aug 2018 Persist contra family violence NTC/order Sentenced imprisonment of 12 months concurrent. Contravene a conduct condition of bail Sentenced imprisonment of 1 month concurrent. [redacted] Magistrates Court [redacted] Aug 2018 Persist contra family violence Sentenced imprisonment of aggregate 14 days concurrent. NTC/order Stalk another person (Crimes Act) Act and disruptive manner in police gaol Proven and dismissed. [redacted] Magistrates Court [redacted] Apr 2018 Burglary
Theft
Sentenced imprisonment of aggregate 1 month cumulative. Criminal damage (intent damage/destroy) Commit indictable offence whilst on bail Persist contra family violence NTC/order
Contravene family violence intervention order
Contravene a conduct condition of bail
Sentenced imprisonment of aggregate 2 months base sentence. Retention of stolen goods
Deal property suspected proceed of crime
Sentenced imprisonment of aggregate 1 month concurrent. Attempt to obtain property by deception Sentenced imprisonment of aggregate 1 month
concurrent.
Contravene family violence intervention order Use heroin
Contravene community correction order Proven. Breach community correction order of 27/12/2017
Sentenced imprisonment of aggregate 1 month concurrent. [redacted] Magistrates Court [redacted] Mar 2018 Obtain property by deception
Attempt to obtain property by deception
Sentenced imprisonment of aggregate 5 days concurrent. [redacted] Magistrates Court [redacted] Feb 2018 Contravene a conduct condition of bail (six charges)
Theft from shop (shopsteal) (three charges)
Commit indictable offence whilst on bail (three charges)
Sentenced imprisonment of aggregate 7 days concurrent. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 7 days concurrent. [redacted] Magistrates Court [redacted] Feb 2018 Possess controlled weapon without excuse
Possess prohibited weapon without exemption/approval
Sentenced imprisonment of aggregate 1 month concurrent. Theft from shop (shopsteal) Sentenced imprisonment of aggregate 1 month concurrent. [redacted] Magistrates Court [redacted] Jan 2018 Theft from shop (shopsteal) Sentenced imprisonment of 14 days concurrent.
Pay compensation $143.92
[redacted] Magistrates Court [redacted] Jan 2018 Possess controlled weapon without excuse Sentenced imprisonment of 14 days concurrent. Theft from shop (shopsteal) (four charges) Sentenced imprisonment of aggregate 42 days concurrent. Commit indictable offence while on bail (two charges)
Contravene a conduct condition of bail (2 charges)
Sentenced imprisonment aggregate 1 month concurrent. [redacted] Magistrates Court [redacted] Dec 2017 Contravene family violence safety NTC-INT harm/fear
Commit indictable offence whilst on bail
Resist emergency worker on duty (two charges)
Convicted and subjected to a community correction order for 18 months to perform 100 hours of unpaid community work. [redacted] Magistrates Court [redacted] Dec 2017 Contravene family violence safety notice (two charges)
Make threat to kill
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 14 days concurrent. [redacted] Magistrates Court [redacted] Aug 2017 Theft from shop (shopsteal) (three charges)
Commit indictable offence whilst on bail (3 charges)
Contravene a conduct condition of bail (4 charges)
Fail to answer bail (2 charges)
Sentenced imprisonment of aggregate 14 days concurrent. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 14 days concurrent. [redacted] Magistrates Court [redacted] Jun 2017 Intentionally damage property (8 charges)
Commit indictable offence whilst on bail
Throw missile injure/danger/damage property
Sentenced imprisonment of aggregate 3 months. [redacted] Magistrates Court [redacted] Feb 2017 Theft from shop (shopsteal) (four charges)
Commit indictable offence whilst on bail
Contravene a conduct condition of bail (three charges)
Attempt to obtain property by deception
Deal property suspected proceed of crime
Sentenced imprisonment of aggregate 3 months concurrent. Possess cannabis Convicted and discharged. [redacted] Magistrates Court [redacted] Oct 2016 Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Contravene a conduct condition of bail
Sentenced imprisonment of aggregate 17 days concurrent. [redacted] Magistrates Court [redacted] Sep 2016 Theft from shop (shopsteal) (six charges)
Commit indictable offence whilst on bail (two charges)
Contravene a conduct condition of bail (two charges)
Drunk in a public place
Sentenced imprisonment of aggregate 14 days concurrent. Possess prohibited weapon without exemption/approval
Possess controlled weapon without excuse
Sentenced imprisonment of aggregate 14 days concurrent. [redacted] Magistrates Court [redacted] Sep 2016 Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Contravene a conduct condition of bail
Sentenced imprisonment of aggregate 4 days base sentence. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 3 days cumulative. Commit indictable offence whilst on bail Sentenced imprisonment of aggregate 3 days cumulative. Possess cannabis Convicted and fined $100. [redacted] Magistrates Court [redacted] May 2016 Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 21 days. Affray (common law)
Unlawful assault
Theft
Sentenced imprisonment of aggregate 60 days base sentence. Possess methylamphetamine Sentenced imprisonment of aggregate 30 days. Deal with property suspected proceed of crime Sentenced imprisonment of aggregate 30 days. Commit indictable offence whilst on bail Sentenced imprisonment of aggregate 30 days. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 30 days. Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 14 days concurrent. Theft from shop (shopsteal)
Handle/receive/retention stolen goods
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 14 days. Deal with property suspected proceed of crime Sentenced imprisonment of aggregate 14 days. Possess controlled weapon without excuse (2 charges) Sentenced imprisonment of aggregate 21 days. Threat to inflict serious injury (2 charges)
Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 42 days. Possess dangerous article in public place Sentenced imprisonment of aggregate 42 days. Deal with property suspected proceed of crime Sentenced imprisonment of aggregate 21 days. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 21 days. [redacted] Magistrates Court [redacted] Feb 2016 Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Contravene a conduct condition of bail
Negligently deal with proceeds of crime
Sentenced imprisonment of aggregate 18 days concurrent. [redacted] Magistrates Court [redacted] Feb 2016 Theft
Commit indictable offence whilst on bail
Contravene a conduct condition of bail
Sentenced imprisonment of aggregate 18 days concurrent. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 18 days concurrent. [redacted] Magistrates Court [redacted] Oct 2015 Theft from shop (shopsteal) Sentenced imprisonment of 14 days concurrent [redacted] Magistrates Court [redacted] Sep 2015 Theft from shop (shopsteal) Sentenced imprisonment of 1 month concurrent. Commit indictable offence whilst on bail Sentenced imprisonment of 7 days concurrent. Use body armour without approval Convicted and discharged. [redacted] Magistrates Court [redacted] Sep 2015 Theft of a motor vehicle Unlicensed driving
Attempted to commit indictable offence
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 2 months concurrent. Possess suspected stolen goods Sentenced imprisonment of aggregate 2 months concurrent. Go equipped to steal/cheat Sentenced imprisonment of aggregate 2 months concurrent [redacted] County Court [redacted] Sep 2015 Breach of community corrections order of 22 August 2014.
Order cancelled. Sentenced imprisonment of aggregate 2 months suspended for 12 months. [redacted] County Court [redacted] June 2015 Theft Sentenced imprisonment of 90 days. Commit indictable offence whilst on bail Convicted and discharged. [redacted] Magistrates Court [redacted] May 2015 Contravene community correction order Proven. Possess amphetamine Convicted and discharged. [redacted] Magistrates Court [redacted] Aug 2014 Theft
Recklessly cause injury
Convicted and subjected to a community corrections order for 12 months. Contravene suspended sentence order Proven. Breach of suspended sentence of 5 December 2012
Suspended sentence fully restored to serve 2 months imprisonment. Robbery Sentenced imprisonment of 6 months concurrent Resist police (two charges)
Impersonate member of police force
With conviction, adjourned to 21 August 2015. [redacted] Magistrates Court [redacted] Dec 2012 Unlawful assault
Criminal damage (intent damage/destroy)
Sentenced imprisonment of aggregate 2 months concurrent. Sentence wholly suspended for 6 months. [redacted] Magistrates Court [redacted] July 2012 Unlawful assault Sentenced imprisonment of 4 months concurrent. Intentionally cause injury Sentenced imprisonment of 6 months base sentence. Theft from shop (shopsteal)
Shop theft - less than $600
On each charge, sentenced imprisonment of 2 months concurrent. Intentionally cause injury Sentenced imprisonment of aggregate 6 months with 4 months to be served concurrently. Theft Sentenced imprisonment of aggregate 2 months with 1 month to be served concurrently Possess heroin
Possess cannabis
Convicted and discharged. Use heroin Convicted and discharged. Breach of suspended sentence of 23 February 2011.
Suspended sentence wholly restored to serve 2 months imprisonment. Breach of suspended sentence of 15 December 2010 Suspended sentence wholly restored to serve 1 month imprisonment. [redacted] Magistrates Court [redacted] Jul 2012 Burglary Theft
Criminal damage (intent damage/destroy)
fail to answer bail
Sentenced imprisonment of aggregate 14 days concurrent. [redacted] Magistrates Court [redacted] Sep 2011 Possess cannabis With conviction, fined $100 with $44 statutory costs. [redacted] Magistrates Court [redacted] Jun 2011 Shop theft - less than $600 With conviction, fined $100. [redacted] Magistrates Court [redacted] May 2011 Recklessly cause injury (two charges)
Unlawful assault (two charges)
Theft from shop (shopsteal) (two charges)
Deal property suspected proceed of crime
Sentenced imprisonment of aggregate 213 days concurrent. [redacted] Magistrates Court [redacted] Feb 2011 Theft from shop (shopsteal) Fail to answer bail
Use heroin
Sentenced imprisonment of aggregate 2 months concurrent. Sentence wholly suspended for 12 months. Deal property suspected proceed of crime Sentenced imprisonment of aggregate 2 months concurrent. Sentence wholly suspended for 12 months. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 2 months concurrent. Sentence wholly suspended for 12 months. Possess anything without authority police gaol With conviction, fined $100. Failure to comply with CBO Proven. Breach of community-based order of 16 June 2010 Sentenced imprisonment of aggregate 1 month concurrent. Sentence wholly suspended for 12 months. [redacted] Magistrates Court [redacted] Dec 2010 Theft With conviction, fined $400. [redacted] Magistrates Court [redacted] Dec 2010 Theft from shop (shopsteal) Sentenced imprisonment of 1 months concurrent. Sentence wholly suspended for 2 years. [redacted] Magistrates Court [redacted] Jun 2010 Theft from shop (shopsteal) (five charges)
Theft (two charges)
Fail to answer bail (three charges)
Shop theft less than $600
deal property suspected proceed of crime
Convicted and subjected to a community-based order for 12 months. Go equipped to steal/cheat
possess controlled weapon without excuse
Convicted and subjected to a community-based order for 12 months. Deal property suspected proceed of crime Convicted and subjected to a community-based order for 12 months. [redacted] Local Court [redacted] Jun 2008 Never licensed person drive vehicle on road - first offence Fined $150.
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