FSKY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2037
•30 June 2021
FSKY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2037 (30 June 2021)
Division:GENERAL DIVISION
File Number: 2020/6531
Re:FSKY
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:30 June 2021
Place:Melbourne
The Tribunal, under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, affirms the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION - refusal of a Protection (Subclass 866) visa – Cambodian citizen – where the respondent’s delegate has accepted that the applicant fulfils the requirement of engaging Australia’s protection obligations – criminal record – has the applicant been convicted by a final judgment of a particularly serious crime – what is a ‘particularly serious crime’ – if so, is applicant a ‘danger to the community’ – consideration of relevant factors – seriousness and nature of offending – mitigating or aggravating circumstances – the period of offending – risk of re-offending – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975, s 37
Crimes Act 1958 (Vic), s 18, 75A, 77
Migration Act 1958, ss 5, 5M, 36, 197A, 197B, 500, 501, 501CA
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014Summary Offences Act 1966 (Vic), s 24
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
HQNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re: [2021] AATA 87
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Minister for Immigration and Multicultural Affairsv Singh [2002] HCA 7; 209 CLR 533
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060WKCG and Minister for Immigration and Citizenship; Re: [2009] AATA 512
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature on 28 July 1951; 189 UNTS 137 (Entered into force 22 April 1954)
Parliament of Australia – House of Representatives – Canberra - Explanatory Memorandum to Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill
REASONS FOR DECISION
Senior Member D. J. Morris
30 June 2021
INTRODUCTION
Australia is a signatory to the 1951 Convention Relating to the Status of Refugees (‘the Convention’). Article 33 of the 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.
What this means is that a refugee may be returned to a place where Australia has accepted they have a well-founded fear of persecution and are therefore owed protection under the Convention if, having been convicted of a final judgement of a ‘particularly serious crime’, they are on reasonable grounds found to be a danger to the country of refuge.
Before 2014, a refugee refused a protection visa based on Article 33(2) of the Convention could seek merits review of such decisions. How the Convention was interpreted followed the usual principles of legislative interpretation. In 2014, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 was enacted. Among other changes, that legislation inserted section 36(1C) into the Migration Act 1958 (‘the Act’). When this amending Bill was introduced into Parliament, the explanatory memorandum said, at paragraph 1235, that the new clause 36(1C) proposed to be inserted into the Act is a criterion that excludes a refugee from the grant of a protection visa.
Paragraph 1236 of the Explanatory Memorandum goes on to state:
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.
After the 2014 amendment, section 36 of the Act relevantly provides:
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.
Section 5M of the Act reads:
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.
(Tribunal’s emphasis.)
There is no evidence in these proceedings that the Applicant has committed a ‘serious foreign offence’.
Section 5 of the Act is the definitions clause. Section 5 defines ‘serious Australian offence’ as follows:
“serious Australian offence” means an offence against a law in force in Australia, where:
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
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.
APPLICANT’S IMMIGRATION BACKGROUND
FSKY was born in 1984 and is a citizen of the Kingdom of Cambodia. When he was aged 6 his father died, and he and his two sisters were left solely in the care of their mother. Their mother died when FSKY was aged 12. The children were then cared for by an uncle. In 1998 FSKY’s older sister, Ms SP, was granted a partner visa to enter Australia, and FSKY and his younger sister, Ms LP, were dependant applicants. FSKY arrived in Australia in December 1998 and in October 1999 was granted a Class BC Subclass 100 Spouse Visa.
Since his arrival in Australia FSKY has not departed. He began offending in 2001 when aged 17. In October 2005, the Immigration Department (‘the Department’) commenced steps to cancel his visa under section 501 of the Act, under character grounds. At the end of February 2006, FSKY was advised by letter that his visa was not cancelled, and he was warned that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if he ‘incurs a liability’ on new grounds.
In June 2009, the Department commenced steps to cancel FSKY’s visa on character grounds. In February 2010, he was advised in writing that his visa was not cancelled. FSKY signed a document which stated he could again be considered for cancellation or refusal of any visa and his past conduct and any previous relevant information can be considered.
FSKY’s visa was mandatorily cancelled on 3 February 2017, on the basis that he had a ‘substantial criminal record’ under section 501(3A) of the Act. On 15 August 2018, a delegate of the Minister responsible for Immigration (‘the Minister’) decided not to revoke the mandatory cancellation of FSKY’s visa under section 501CA(4) of the Act. On 8 November 2018, the Tribunal (differently constituted) affirmed the delegate’s decision.
On 29 March 2018, FSKY applied for a Protection (Subclass 866) Visa. On 4 June 2018, a delegate of the Minister refused the visa application. On 22 August 2018, the Tribunal (differently constituted) remitted the matter with the direction that the Applicant satisfied the criteria under section 36(2)(a) of the Act for the visa.
On 15 October 2020, a delegate of the Minister refused to grant FSKY a protection visa because, while the delegate was satisfied that the Applicant is a person in respect of whom Australia has protection obligations as set out in section 36(2)(aa) of the Act, the delegate was not satisfied FSKY met the criterion in section 36(1C) of the Act. The delegate concluded that FSKY, having been convicted by a final judgment of a ‘particularly serious crime’, is a danger to the community.
It is this decision of October 2020 that FSKY has brought to the Tribunal for review. The authority of the Tribunal to review the decision is section 500(1)(c)(i) of the Act. The matter the Tribunal must address is whether the Applicant is a person for whom an exception should be made because of section 36(1C)(b) of the Act, which consequently means he cannot be granted the protection visa. If the Tribunal decides the exception does not apply, the bar to grant of a protection visa does not apply.
HEARING
The hearing was on 16 and 17 March 2021. Ms Shannon Finegan of counsel appeared for FSKY instructed by Carina Ford Lawyers. FSKY gave evidence and was cross-examined by Mr Adam Cunynghame of Sparke Helmore Lawyers, appearing for the Minister. Others who gave evidence were Mr Warren Simmons, psychologist; Mr HT, the brother-in-law of the Applicant; and Ms SP and Ms LP, his sisters. The Tribunal was assisted by an interpreter in the Khmer language.
These documents were admitted into evidence:
(a)T-documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1);
(b)Witness statement of FSKY, lodged on 1 March 2021 (Exhibit A1);
(c)Report of Mr Warren Simmons, psychologist, dated 25 February 2021 (Exhibit A2);
(d)Witness statement of Mr HT, brother-in-law of the Applicant, dated 24 February 2021 (Exhibit A3);
(e)Witness statement of Ms SP, sister of the Applicant, dated 24 February 2021 (Exhibit A4); and
(f)Witness statement of Ms LP, sister of the Applicant, dated 24 February 2021 (Exhibit A5).
APPLICANT’S OFFENDING HISTORY
A Victoria Police Criminal History Report with a list of FSKY’s past offending was at (T, pp 490-525). His first offending was dealt with by the Children’s Court in July 2000 when he faced charges of Recklessly Cause Injury and Assault with weapon. These charges were adjourned without conviction for one year and the Applicant was released on a good behaviour bond.
FSKY was back before that Court in October 2001 charged with the offence of Handle/Receive/Retention of Stolen Goods. Again, he was released without conviction and the charges adjourned for three months, with a good behaviour bond.
In October 2002, FSKY was before the Magistrates’ Court and convicted of the following offences: Possess Heroin (3 counts); Fail to Answer Bail; Traffic Heroin (3 counts); Possess Money being proceeds of Crime (3 counts); Possess Property being Proceeds of Crime. He was given an 18-month Community Based Order (‘CBO’) with mandatory directions including treatment, participation in individual counselling and 100 hours of community work.
In November 2002, FSKY was before the County Court of Victoria where he was convicted of the offences of Armed Robbery (3 counts) and Aggravated Burglary. He was sentenced to an aggregate period of two years in a Youth Training Centre,
In February 2003, the Applicant was convicted at the Magistrates’ Court of the offence of Possess an Article Prejudicial to Security/Good Order and fined $200. On the same day, he was convicted of the offence of Traffic Heroin and given an effective total term of 12 months in a Youth Training Centre. A charge of Failure to Comply with a CBO was found proven.
In March 2003, FSKY was before the County Court in relation to breaching the CBO imposed in October 2002 and was sentenced to four months in a Youth Training Centre on each count.
In July 2005, the Applicant appeared at the Magistrates’ Court. He was convicted of the offences of Burglary (2 counts); Theft (2 counts); Possess an Article Prejudicial to Security/Good Order; Theft of a Motor Vehicle; Cultivate Narcotic Plant – Cannabis; Obtain Property by Deception; Go Equipped to Steal/Cheat. For these convictions, he was sentenced to an aggregate term of 18 months in prison.
In January 2007, FSKY was before the Magistrates’ Court. He was convicted of the offences of Possess Controlled Weapon without Excuse; Attempted Theft from Motor Vehicle; Go Equipped to Steal/Cheat; Theft of a Motor Vehicle; Theft from a Motor Vehicle; Theft (2 counts); Criminal Damage (Intent to Damage/Destroy). He was sentenced to an aggregate term of four months’ imprisonment to be served by way of a Drug Treatment Order.
In July 2007, FSKY was before the Magistrates’ Court again and convicted of the offences of Theft from Shop (Shopsteal) and Deal in Property suspected the Proceeds of Crime. He was sentenced to two months’ imprisonment, wholly suspended for nine months.
In August 2007, the Applicant was back before the Magistrates’ Court in relation to his January 2007 convictions and was sentenced to 15 days’ imprisonment, to be served by way of a Drug Treatment Order. He was again back before the Courts in October 2007 in relation to these offences and given further directions for medical treatment.
In November 2007, FSKY was before the Magistrates’ Court and convicted of the offences of Theft of a Motor Vehicle; Theft; Go Equipped to Steal/Cheat. He was sentenced to an aggregate term of 42 days in prison, suspended for six months, and suspended from driving for one month.
In August 2008, FSKY was before the Magistrates’ Court in relation to his October 2007 appearance and this time sentenced to 30 days’ imprisonment, to be served by way of a Drug Treatment Order and with orders for medical treatment.
In September 2008, FSKY was before the Magistrates’ Court on fresh charges. He was convicted of the offences of: Theft of a Motor Vehicle; Traffic Heroin; Use Heroin; Theft (2 counts); Interfere with Motor Vehicle; Tamper with Motor Vehicle; Deal in Property suspected the Proceeds of Crime (10 counts); Obtain Property by Deception (7 counts); Fail to answer Bail (2 counts); Handle/Receive/Retention of Stolen Goods; Deal in Property suspected the Proceeds of Crime (further count); Go Equipped to Steal/Cheat; Possess Dangerous Article in Public Place; Possess Controlled Weapon without Excuse (2 counts). He was also convicted of a breach of Court orders made in July 2007 and a suspended sentence wholly restored (2 months’ imprisonment), and a breach of a Drug Treatment Order (14 days’ imprisonment). FSKY was sentenced to an aggregate term of 10 months’ imprisonment.
In June 2009, FSKY was before the Magistrates’ Court again. On this occasion he was convicted of the offences of: Theft of a Motor Vehicle (2 counts); Theft from Motor Vehicle; Drive under the influence of Drugs; Drive in a Manner Dangerous; Unlicensed Driving; Fail to Give Name and Address to Injured; Fail to Render Assistance after an Accident; Fail to report to Police - Owner not Present; Refusal to accompany police to assess driver impairment; Theft from Shop (Shopsteal). He was sentenced to a total prison term of one year and six months.
In August 2011, the Applicant appeared before the Magistrates’ Court. He was convicted of the offences of Burglary; Theft; Attempted Theft; and Go Equipped to Steal/Cheat. He received a total prison term of three months.
In June 2013, the Applicant was before the Magistrates’ Court again. He was convicted of the offences of Possess Heroin (2 counts); Possess Drug of Dependence – prescription drug (2 counts); Possess Drug of Dependence – not named; Possess Methylamphetamine; Deal in Property suspected the Proceeds of Crime; Fail to answer Bail (4 counts); Theft of a Motor Vehicle; Unlicensed Driving; Theft; Use Amphetamine; Use Heroin; and Possess Controlled Weapon without excuse (2 counts). FSKY was convicted and placed on a Community Corrections Order (‘CCO’) for 12 months.
In August 2014, FSKY was before the Magistrates’ Court. A charge of Contravening a CCO was found proven. In relation to the June 2013 offences, and the fresh charges below he was sentenced to four months’ imprisonment. The fresh charges for which FSKY was convicted were: Obtain Property by Deception (7 counts); Dishonestly Receive Stolen Goods; Carry Controlled Weapon without Excuse; and Possess Suspected Stolen Goods.
On 17 February 2015, the Applicant was before the Melbourne Magistrates’ Court, FSKY was convicted of the offences of Recklessly Cause Serious Injury; Failure to Stop Vehicle after an Accident; Fail to render assistance after an Accident. He was sentenced to 12 months’ imprisonment, with a six-months non-parole period, and disqualified from driving for eight years.
In February 2015, FSKY was before the Magistrates’ Court in Dandenong and convicted of the offence of Entering a Private Place without authorisation or excuse. He was fined $600.
An appeal was made to the County Court in relation to the 17 February 2015 convictions and in November 2015 that Court made new orders. In relation to the offence of Recklessly Cause Serious Injury, FSKY’s sentence was increased to 2 years’ imprisonment. In relation to the offences of Fail to Stop Vehicle after an Accident and Fail to render assistance after an Accident, FSKY was sentenced to six months on each count, three months to be served concurrently. In relation to a conviction for Unlicensed Driving, the Court imposed a sentence of one months’ imprisonment, concurrent. The total period of imprisonment was two years and six months, with a non-parole period of 18 months. His driver licence was cancelled for three years.
OPENING SUBMISSIONS - APPLICANT
Ms Finegan conceded that FSKY has been convicted of two crimes which fall within the category of a ‘particularly serious crime’, namely his 2002 offending which led to convictions for Armed Robbery and Aggravated Burglary, and his 2015 conviction for Recklessly Cause Serious Injury, for offending in 2013 when he was aged 30.
Counsel submitted that the question before the Tribunal is whether FSKY poses a danger to the Australian community.
Ms Finegan said that FSKY regularly took heroin until seven years ago, and the level of risk is centred on him taking heroin again, the risk of harm of the Applicant inflicting physical harm on to the Australian community and the risk of relapse and any relapse causing physical harm.
Ms Finegan submitted that FSKY has been incarcerated since 2015 and at the completion of his sentenced in May 2018 he was taken into immigration detention. She reiterated that FSKY is a Cambodian citizen who came to Australia as a 14-year-old. She said he has previously been found by the Tribunal to be owed protection obligations. His life has been marred by heroin addiction. Counsel conceded that FSKY has an extensive criminal history, but that violence has never been a feature of his offending. She said that the Applicant has not taken heroin since 2014 and is on a low maintenance dosage of methadone. She said he has behaved well in detention and has a loving and supportive family awaiting him if he is released into the community.
OPENING SUBMISSIONS - RESPONDENT
Mr Cunynghame said the parties agreed on the legal framework applicable to the matter to be considered by the Tribunal except for one issue, the risk of the Applicant re-offending.
He submitted it is accepted that FSKY has made attempts at rehabilitation and has abstained from heroin use in recent history, but that he has rehabilitated before, and then has gone on to re-offend, and has been warned before in terms of his immigration status, and has also gone on to re-offend after being so warned.
Mr Cunynghame submitted that the Respondent’s view accorded with the submissions made by Ms Finegan, that, apart from the 2015 conviction by the County Court, FSKY’s 2002 offending in relation to convictions for armed robbery also fulfils the criterion of being a ‘particularly serious crime’.
ORAL EVIDENCE
The Applicant
Counsel for FSKY asked him if it was the case that in 2010, four years before the crime that put him in gaol, he had just been released after 18 months in prison and had received a warning from the Department. FSKY confirmed that was so.
Ms Finegan asked FSKY about some of his offending and the fact that between 2010 and 2015 he was arrested some eleven times. The Applicant said that he cannot really remember what happened on many occasions. He said he was trying to change his behaviour and stop using heroin.
FSKY said: “It was difficult. I had been using for a long time. I’d been to rehab a lot of times. Addiction was a sickness. I got out from rehab and went back to the drugs. It is hard to explain. People who are addicted know. I got myself clean. The harder thing for me is to stay clean; I always try to better myself.”
In respect of the offence for Recklessly causing serious injury, FSKY said he took full responsibility for what happened.He told the Tribunal:
“I was in a relationship with the other person for nine months, but it was not a good relationship, her name was ‘P’. We were arguing. I was driving her home. A couple of streets away I pulled over. There was a tree trunk in front of the car. We were swearing and arguing back and forth. I told her to get out. She got out. She turned around and said something. I said ‘F--- you, I’m going.’ I meant to put the car into reverse. Accidentally put it in drive. Hit her and ran her over. She fell on the ground. I asked if she was ok. She kept swearing. I said, ‘I’ve had enough, I’m going.’ I didn’t know she was injured until two weeks later when police came and showed me pictures of her broken ankle.”
FSKY said he was not sure why he hit P with the car, “it just happened, but that doesn’t explain how all this happened. I take full responsibility for that.”
FSKY said he was drug-affected at the time but had not been drinking alcohol. FSKY said the police came to his place and showed him pictures of P’s injured foot and told him to come to the station to undertake an interview, but he was not arrested.
The Applicant said he thinks he was then arrested and taken into remand but released on bail right away and he returned to live with his sister, Ms SP.
There was a delay of about a year before the matter was dealt with in Court. FSKY said he tried to clean himself up before he went to prison and had not taken heroin for about a year before he commenced his prison term and commenced a methadone programme in the community.
FSKY confirmed that he pleaded guilty and was remorseful for what he did, “It should never have happened. I wasn’t thinking clearly.”
FSKY said he did not take drugs in prison, although he knew they were available and he had done regular urine tests, all of which were negative. The Applicant said he had not taken drugs in immigration detention and had urine tests while in Villawood IDC, all of which were negative.
FSKY said he started taking methadone in the community in 2014 or 2015 after a recommendation from a youth worker. He initially started on a 40 mg dosage which went up to 80 mg, but he is now on 5 mg, which he told the Tribunal is the lowest the doctor can prescribe.
Ms Finegan asked FSKY what is his long-term plan regarding methadone if released. He responded: “First of all I want to be stable with my addiction. I just want to feel normal and get off. I just want to stay drug-free.”
FSKY said in prison he had done two courses on relapse prevention and two on ‘talking change’, and another six-months programme of which he couldn’t remember the name. He said the courses taught him how to behave around people who are using and how to handle peer pressure.
The Applicant said he had done a ‘wired up’ alcohol and drug programme (T, p 259) and “learned how to stay clean and keep myself away from my old friends and people who got me into drugs. I was clean and I’d go back to the same place and start using. I learned to stay away from old friends, to keep busy and keep positive.”
If released into the community FSKY said he had a local youth worker and a support group, he used to go to for help and counselling. He said he hoped to get a job with his sister who has a takeaway food shop and he would like to go and help her out, and maybe play sport.
FSKY said he would live with Ms SP and her husband Mr HT, and their three children, who are aged 21, 19 and about 6.
Under cross-examination, Mr Cunynghame asked FSKY why he had stopped taking heroin several times but had got back into drug-taking. He replied: “I’m not sure how to explain this. Sometimes you just feel lonely and out of frustration things aren’t working out for you and you go back to using. In addition, the people I was hanging around with and the area I was living in at the time.”
When asked what he thought the risk factors might be, in terms of returning to using drugs, FSKY responded: “The people. The area I was living in. Things in life. Boredom. A lot of things I don’t understand myself.”
FSKY agreed that a lack of stable employment and homelessness would increase the likelihood of returning to drug-taking.
Mr Cunynghame asked FSKY if it was his intention to live with his sister and brother-in-law and work with her, and how else would he spend his time. He replied: “I could go to live with Ms SP or my little sister, Ms LP – she also has a home and has invited me to live with her. Or I could live with Ms SP and go to work with her in the morning.”
When asked about the incident where he ran over his partner, FSKY agreed he did not have a driver’s licence at the time and told the Tribunal he was on sleeping pills, which “I got from some friends who gave them to me, I can’t remember.”
FSKY said he did not call the police or ambulance after the incident because he did not think P had been hurt. He said he did not speak to her again and only found out that she had been injured when the police came to his sister’s house, where he was living, around two weeks after the incident.
When asked directly by the Tribunal whether he had got out of the car, FSKY said: “I got out of the car and asked quickly ‘are you alright?’ She swore at me. I swore back. Never spoke to her since.”
Mr Cunynghame asked FSKY if he remembered attending courses run by an organisation called SEADS in 2009 (T, p 428). FSKY said that now he is reminded of the dates, he did remember it and thought he had six appointments, one he did not attend and one that was rescheduled owing to his drug use or mental health.
FSKY was taken to a certificate that he had completed a Fulham Correctional Centre 40-hour semi-intensive drug treatment programme in November 2009. He said he was taught life skills, about peer pressure and how to stay away from people using drugs, but he could not remember all the details.
The Applicant said that he hoped to get a job helping in his sister’s shop with whatever she needed, preparation, cleaning, cooking and so on. He said he had experience cooking in a Chinese restaurant when he left school. FSKY said he thought Ms SP goes to work about 6.00 or 6.30 in the morning and he would work ‘full hours’ except on the weekend. He said he had not discussed salary with her.
FSKY said he recalled the Department decided not to cancel his visa in 2006 and 2010 and remembered receiving a warning letter from the Department dated February 2016 (T, p 345). FSKY said that he remembered working with Victoria Legal Aid to make submissions on his behalf to the Department. When asked why the Tribunal should believe he would not re-offend now, he said: “Back then I was young and wasn’t taking things seriously. I thought it’s just a letter. I was careless. I was too much into using back then. I didn’t realise it was serious until I came to the detention centre.”
FSKY said if released into the community he had plans to see a local doctor who he had previously seen and who had all his history of drug-taking.
Mr Simmons, psychologist
Mr Simmons affirmed that he wrote a report on FSKY dated 25 February 2021 (A2) and had diagnosed him with heroin use disorder. He said this disorder is usually treated through counselling and sometimes residential treatment, as well as methadone or buprenorphine.
Ms Finegan asked what proportion of sufferers are successfully treated. He replied: “Unfortunately a large number succumb to the drug itself. Many relapse after a long period of abstinence.”
Mr Simmons said that FSKY still has heroin use disorder ‘in a technical sense’ but it is in abeyance. When asked by the Tribunal what was his opinion on how FSKY would cope in the community if released, out of a controlled environment, Mr Simmons said: “I understand he has potential employment and plans to live with his family. He will struggle a little on release. I’d recommend he stay on a low dose of methadone on release.”
Mr Simmons said maturation plays a big part in the ability of a person not to return to drug use. Mr Simmons said it is a positive sign that FSKY has not taken drugs in prison and if he had family support, work and counselling in the community, it would lower the risk of re-offending, but if he became homeless and re-engaged with his old peer group, then there would be a higher risk.
Ms Finegan asked whether if a person addicted to heroin was unable to obtain it, would they be likely to use sleeping pills. Mr Simmons said that a person is more likely to go to their drug of choice rather than a substitute.
Under cross-examination, Mr Simmons said the factors that have driven FSKY’s drug use and consequent offending have included boredom and conflict with his family. In the early days it was novelty, which is a common factor with most illicit drug takers.
Mr HT, brother-in-law of the Applicant
Mr HT adopted his statement (A3) and gave evidence that he works as an electrical fitter. He told the Tribunal that he and his wife, Ms SP, have a four-bedroom house with a study, so effectively five bedrooms.
He said he did not have concerns about FSKY living in the family home if released. He said if he found FSKY had resumed using heroin “I would kick him out and seek help for him; take him to the doctor.”
Under cross-examination, Mr HT said he was aware of FSKY’s drug history and that he had tried to stop using ‘off and on’. He said FSKY has lived with the family before, “he has no other home.”
In response to direct questions from the Tribunal, Mr HT said he had got FSKY a job for a few months in a factory, but he did not know why he left.
Ms SP, older sister of the Applicant
Ms SP adopted her statement (A4). She said growing up she had been close to her brother and that when he is not taking drugs he is “like a regular family member.”
Ms SP spoke about her two older children, a son who is studying criminology and a daughter who is studying science at university. She said they had a good relationship with their uncle.
Ms SP said she would give FSKY a job at her takeaway food shop undertaking kitchen tasks and waiting at table, and she would teach him to cook. She said she leaves from home at 4.00 a.m. and FSKY would have to go with her in the car, and that she usually returns home about 3.00 p.m.
When asked about local health services, Ms SP says there is a pharmacy about 10 minutes’ walk away from their home and drug and alcohol services about 15 minutes’ bus ride away.
Under cross-examination, Ms SP said she had not discussed the hours of work with FSKY but had discussed the job in general. She said she would pay him enough to live on, as taxable income, but did not want him to have a lot of money on him.
Mr Cunynghame asked Ms SP whether there had been difficulties in the past with FSKY living with her. She replied: “When he was not on drugs, he is a friendly person. When he is on drugs it was a bit tricky. I would try and talk some sense into him, like a mother to a child.”
When asked directly by the Tribunal why she would not want the Applicant to have a lot of money, Ms SP replied: “He would be staying with me. This time I want to keep a close eye on him. It would help him to save for the future. I want him to be like my sister and have his own house.”
Ms LP, younger sister of the Applicant
Ms LP adopted her statement (A5). She said she lives in a three-bedroom home with her boyfriend, who she said has met FSKY before and who gets along with him.
Ms LP said she was prepared to take time off from her work to help organize medical appointments for her brother.
Ms LP said: “If he wants to live with me, half-and-half, or at weekends, that’s fine with me.”
CLOSING SUBMISSIONS – APPLICANT
Ms Finegan said FSKY is a 37-year-old man with a chronic disease, heroin use disorder. She said the test under section 36(1C) of the Act is whether the person presents a ‘present and serious risk of harm’ to the Australian community. Unless the Tribunal finds that FSKY is likely to relapse and offend, and the offending is likely to harm a member of the community, then the criterion is not met.
Ms Finegan said that the reason for the exemption provided for in terms of refoulement of a person is that countries need to be protected from violent offenders and suggested that the so-called Briginshaw test (Briginshaw v Briginshaw (1938) 60 CLR 336) should be used by the Tribunal.
Ms Finegan submitted that FSKY is not a violent offender and most of his offending relates to his drug habit and that dependence on heroin was a contributing factor in the way the most recent offending occurred.
Ms Finegan submitted that, while he continued to re-offend, the Department’s warnings to him had some deterrent effect, and that in 2014 and 2015 there was a period of 16 months of no offending.
Counsel submitted that, if released into the community, FSKY will have had long sobriety, and will have a supportive family and treatment opportunities.
Ms Finegan said that FSKY is owed protection by Australia and if repatriated to Cambodia does not have family there and could face detention in camps the government there uses for drug-users. Ms Finegan said that in summary the Applicant presents a possible but low risk of violent offending and has a strong motivation not to re-offend.
CLOSING SUBMISSIONS - RESPONDENT
Mr Cunynghame said the Minister relies on the judgement of the Full Court of the Federal Court of Australia in SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 (‘SZOQQ’) at [27], where the Court held that there is no requirement to undertake any ‘balancing’ of the consequences to an individual upon being removed from Australia.
The Respondent submitted that if the Tribunal decides that FSKY is a danger to the community, then he cannot be granted a protection visa; this is not a matter for discretion.
Mr Cunynghame said that FSKY has been sentenced to numerous terms of imprisonment, with offending spread over a period of some fifteen years and has been convicted of violent offences.
Mr Cunynghame submitted that both parties agreed that the 2015 offending involved violence. The Respondent accepted that FSKY had a difficult childhood and has no apparent family in Cambodia, but also submitted that most but not all his offending has been linked to drug addiction.
The Respondent submitted that FSKY has not addressed his drug use when he had the opportunity to do so and that the nature and seriousness of his offending supports a finding that the Applicant is a danger to the community, with some 21 offences and frequent offending involving dishonesty, crimes involving violence, trafficking and destroying property.
Mr Cunynghame referred to earlier courses that FSKY had undertaken in 2009 where he said he learned life skills and tactics for avoiding reverting to drug use, but that he had nevertheless relapsed. Her said that FSKY had told the Tribunal he intended to see a general practitioner but did not give evidence of engaging with a counsellor or a drug rehabilitation programme.
Mr Cunynghame acknowledged Ms SP’s offer of employment but said FSKY was not clear about what the job would entail, had had no discussions about pay and hours and has a very limited employment history. The evidence points to an inability to hold down secure accommodation or employment in the past. He submitted it is open to the Tribunal to take into account the evidence and statements of the family as a protective factor, but that they have made such statements in the past when the Department has warned FSKY.
The Respondent said that, even if FSKY did not re-offend, all that has to be proven is that he is a danger to the community, not that he is a risk of violent offending.
Mr Cunynghame drew the Tribunal’s attention to a September 2018 report by Elizabeth Warren, forensic psychologist (T, pp 716-722). Ms Warren examined FSKY in March 2018 at Villawood IDC. In her evidence in previous proceedings before the Tribunal, Ms Warren expressed the opinion that FSKY was somewhat vague in expressing his strategies for avoiding reverting to drug-taking in the future. In response, Ms Finegan submitted that the Tribunal should prefer Mr Simmons’ more recent report to that of Ms Warren.
CONSIDERATION
Should the Tribunal consider the potential consequences if FSKY is repatriated?
The Tribunal accepts the submissions of the Respondent that it is not engaged in a balancing act. That has been made clear in SZOQQ. It is not part of this task to look at what might or might not await FSKY in Cambodia if his protection visa is refused. To the extent that such submissions were made by counsel for FSKY, they do not take account of the fact that the purpose of section 36(1C) of the Act is to put into domestic law the legislative exception that the Convention already makes provision for in Article 33(2).
Kirby J referred to this exception as a ‘compromise’ in Minister for Immigration and Multicultural Affairsv Singh [2002] HCA 7; 209 CLR 533 (‘Singh’), in that it allows a country of refuge to exclude a person otherwise owed international protection obligations to ensure the integrity of their own communities.
If the Tribunal concludes that a person is a ‘danger to the community’ within the context of that term in the Act, it is not a relevant consideration as to whether in international law he or she may have been found to be owed protection or complementary protection which might be said to invite a balancing of considerations.
With respect to the submissions made by counsel for the Applicant, I do not think the Briginshaw test is applicable. To adopt such a test, which is centred around coming to a state of satisfaction, risks adopting a standard different from that contemplated in the Act. The Tribunal should address the questions based on what the facts disclose; it is not undertaking the exercise of a discretion in so doing.
The framework of the exception in section 36(1C)
Re: WKCG and Minister for Immigration andCitizenship [2009] AATA 512 (‘WKCG’) is a Tribunal decision of Deputy President the Hon. Brian Tamberlin, QC. A distinguished former Judge of the Federal Court of Australia, he became a presidential member of the Tribunal on retiring from the bench. In that decision, DP Tamberlin tackled the exception provided in Article 33(2). He said, at [26] to [29]:
The question as to whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question regard must be had to all the circumstances of each individual case.
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 of the Australian community.
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.
Counsel for the applicant submits that as a matter of construction of Article 33(2), it is necessary to show that there is causal connection between the relevant crime of which he has been convicted, in order to decide whether the refugee can be said to constitute a “danger”. Conversely, the respondent submits that the correct interpretation of the wording does not include the causal relationship for which the applicant argues.
As a matter of interpretation, in my view, the reference to the words “having been convicted” operate to limit the class of persons on whom the provision operates and that the question whether a person “constitutes a danger” is a separate additional matter to be independently established. The reference to “having been convicted” is analogous to a prerequisite to the exercise of the power independent of the other criterion. This conclusion is supported by extrinsic material including the Second Reading speech and the relevant Explanatory Memorandum. Therefore, once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community. Of course the nature and circumstances of the conviction or convictions will generally be highly relevant to this question whether the person can be described as being a “danger”. However, it is not conclusive. It is necessary to look at the person’s conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions. In other words, if a person is convicted of a crime of violence and it later transpires that he or she may constitute a danger to the community in another area, such as drug trafficking, such a person may come within the exception provided for in the Article. Accordingly, I agree with the submission made by the respondent Minister and reject the submission of the applicant that the particular offences for which the person has been convicted must always somehow be causally linked to the type of danger to the community.
WKCG therefore gives a useful ‘list’ of considerations when assessing whether a person is a ‘danger to the community’. It is important to note, however, that DP Tamberlin emphasised that regard must be had to all the circumstances in an individual case. He was not compiling an exhaustive list. However, the considerations in WKCG has been commented on favourably by the Federal Court of Australia.
During the hearing both parties made submissions about which of FSKY’s offences should be categorised as violent. While the element of violence naturally informs the level of seriousness of a crime, it is not a mandatory requirement in section 5M of the Act, a note to which the end of section 36(1C)(b) of the Act refers.
Section 5M of the Act includes the definition of ‘a particularly serious crime’ to ‘include’, relevantly in this case, a ‘serious Australian offence’. The term ‘serious Australian offence’ is further defined in section 5 of the Act, but the key word in section 5M is ‘includes’. It is therefore the case that if a person has been convicted of a ‘serious Australian offence’, the person automatically comes within the compass having been convicted of a ‘particularly serious crime’. But it is not a coterminous definition. A decision-maker can fairly consider other relevant offending by a person that does not fall within the definition of ‘serious Australian offence’. Parliament has deliberately provided that this definition is not confining.
In addition, while the definition of a ‘serious Australian offence’ in section 5 of the Act refers to an offence which involves violence against a person, the definition is disjunctive, because it also includes other categories, any one of which would constitute a ‘serious Australian offence’, namely a serious drug offence; an offence involving serious damage to property; and an offence against section 197A or 197B of the Act, which concerns offending in migration detention. None of these later categories necessarily involves violence.
Ms Finegan cited the Tribunal’s decision in Re:HQNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 87. To the extent to which the learned Senior Member in that case is, at paragraph [69], suggesting that a risk of violence is necessary in terms of gauging danger to the Australian community, I very respectfully disagree with that conclusion. The presence of violence in past offending is certainly an ingredient in assessing danger, but not a mandatory one. The very definition in section 5 of ‘serious Australian offence’ in (ii), (iii) and (iv) points away from violence being a required element.
The two-step process
The way section 36(1C)(b) of the Act is couched means it is a conditional clause. It is a necessary requirement that a person must have been convicted of a ‘particularly serious crime’ to consider, then, whether he or she is a ‘danger to the community’. However, the danger to the community is a contemporary assessment that is made; and the assessment is not based only on the ‘particularly serious crime’ offending.
Section 36(1C) of the Act is arguably more beneficial to the refugee because, unlike the syntax of Article 33(2) of the Convention, it applies a ‘reasonable grounds’ qualification to the Minister concluding that a refugee is a ‘danger to the community’, rather than applying that qualification only to a refugee who may be a danger to the security of the country.
Section 36(1C)(b) of the Act therefore requires a decision-maker to undertake a two-step exercise. The first step is: Has the person been convicted by final judgment of a ‘particularly serious crime’? If the decision-maker is satisfied that the answer to that question is ‘yes’, the second step is: to consider whether on reasonable grounds the person ‘is a danger to the Australian community’.
Has FSKY been convicted of ‘a particularly serious crime’?
The threshold of three years provided for in the definition of ‘serious Australian offence’ does not necessarily have to be met in deciding that a refugee has committed a ‘particularly serious crime’, though it would likely usually be met. In addition, at least one of the other stipulations in the definition of ‘serious Australian offence’ set out in (a)(i) to (iv) of that definition in section 5 of the Act, would also usually be met. However, other serious criminality, such as for example major fraud, might also fall within the category of satisfying a decision-maker that it constitutes a ‘particularly serious crime’, even though such a crime might not be violent, involve drugs, or involve serious damage to property.
The delegate considered that the following offending of FSKY fulfilled the criterion of being a ‘particularly serious crime’ – his 2000 charges for Recklessly causing injury and Assault with weapon, dealt with by the Children’s Court without conviction; his November 2002 convictions for two counts of Armed robbery and one count of Aggravated burglary; his November 2015 for the offence of Recklessly causing injury.
The delegate noted that the maximum penalty for the offence of Recklessly causing injury under section 18 of the Crimes Act 1958 (Vic) (‘the Crimes Act’) is five years’ imprisonment and the maximum penalty for Assault with weapon is two years’ imprisonment under section 24 the Summary Offences Act1966 (Vic). Section 75A of the Crimes Act provides for a maximum penalty of 25 years’ imprisonment for the offence of Armed robbery and, under section 77 of the same Act, 25 years’ imprisonment is the maximum penalty for the offence of Aggravated burglary.
It is important to note that section 5 of the Act refers to whether an offence is ‘punishable’ by a period of more than three years’ imprisonment. Therefore, while it is factual that FSKY was not sentenced to anywhere near the maximum penalties in relation to his 2002 and 2015 offending, that is not the yardstick to examine when looking at whether the offending fits into the category of a ‘serious Australian offence’.
I am satisfied to make a finding that FSKY has been convicted of a ‘particularly serious crime’. I make clear that, in making that finding, I explicitly exclude his appearance in relation to the 2000 charges before the Children’s Court. That Court did not record a conviction, so that offending is not relevant in the assessment under section 36(1C)(b) of the Act.
Is FSKY ‘a danger to the Australian community’?
The second step of the process is whether FSKY is, on reasonable grounds, considered a ‘danger to the community’ as at the date of this decision. While the notion of danger arising has a logical origin in the previous criminal convictions of the person, the assessment of whether it can be found, on reasonable grounds, is a contemporary exercise. As Davies J said in WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060, that is a factual inquiry and is fact-specific in each case. Importantly, the gerund phrase at the beginning of section 36(1C)(b) – “having been” – means the words immediately following are a dependent clause, so while the criminal convictions are the genesis for initiating the section 36(1C) assessment, the second step of the assessment about danger may not necessarily “directly” link to the offending in the first step.
DP Tamberlin referred in WKCG to the words in Article 33(2) of the Convention (now essentially mirrored in section 36(1C)) as ‘plain and simple English’. Bromberg J stated in his judgment in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108, at [54]:
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.
With respect, I think this is a sensible way to approach the assessment.
The seriousness and nature of the crimes and the sentences imposed
Some of FSKY’s long list of offending has been at the lower end of the spectrum, and it is reasonable to accept the submission from the Applicant that some of it has been driven by his drug-taking. It has involved damage to property, theft from and damage to motor vehicles, burglary, stealing from shops and, at the higher end, armed robbery, aggravated burglary, and the signal offence of recklessly causing injury.
The Courts have applied a wide range of the sentencing and behaviour management tools at their disposal to FSKY, including bonds, fines, orders (including orders to obtain medical treatment), periods at Youth Training Centres and, ultimately, custodial sentences. Despite these measures, FSKY has returned to offending.
In relation to the armed robbery and aggravated burglary convictions in 2002, the sentencing Judge related how FSKY and three others entered a house while the occupants were sleeping, wearing facial disguises. FSKY was carrying a machete, as was one of his co-offenders. The other two co-offenders carried, respectively, a sword and a handgun. A female occupant of the house woke to find the four intruders. She was told to remain still, or she would be killed. She and another female occupant were ordered to take off their jewellery and hand it over. Their telephone was cut off. One of the females was tied up. When she managed to untie herself, she was struck on the head three or four time by one of the co-offenders. A necklace and earrings were physically pulled from one of the women.
In relation to the 2015 offence for recklessly causing injury, that was a particularly serious offence because it involved FSKY injuring his then partner with the vehicle he was driving. I find, whilst perhaps not appreciating that he had injured her, FSKY knew he had inflicting some form of harm on her by knocking her down with the car. On his own evidence he got out briefly, but then re-entered the car and drove away. He did not attempt to assist her, nor call for aid. In fact, on his evidence at the Tribunal he did not have any further contact with her and found out about the extent of her injuries when he was shown photographs by the police of her broken ankle, two weeks later around the time of his arrest. The seriousness of the offence as viewed by the Courts is underlined by the fact that, on an appeal brought by FSKY, the County Court increased the sentence originally imposed by the Magistrates’ Court.
While I expect FSKY did not intend to hurt P, he did so and the serious nature of the offending is amplified by the fact that, having done so, he left her by the roadside. The elements of the offence for which he pleaded guilty means he accepted, as did the Court, that he knew there was a real possibility of serious injury by his actions but was reckless about that.
While I accept that many of FSKY’s offences have not involved violence against the person, I do not accept Ms Finegan’s submission to the Tribunal that none of them has. These two incidents of offending outlined above illustrate that.
Mitigating or aggravating circumstances
The Tribunal accepts that FSKY faced a difficult upbringing with the early death of, first, his mother and, then his father. There is commentary by treating psychologists in the papers before the Tribunal that these factors, together with his emigration to Australia with his sisters, caused significant displacement to FSKY, which I accept.
Unfortunately, FSKY started smoking cannabis from the age of 18, daily from around the age of 20. Aged 21 he began using heroin, at first by smoking it and then, after about 18 months, intravenously. At the peak of this habit, he was using half a gram a day (p 3 of A2). There is no doubt that this latter drug has been a particular blight on FSKY’s life. While being affected by drugs or alcohol when offending may inform an assessment of risk, it does not reduce a person’s culpability for the crimes, although it may provide a certain amount of context.
The period of offending
FSKY’s offending began in July 2000, some two years after he arrived in Australia, and continued up until 2015, with relatively regular monotony for a decade, apart from periods where he was either in Youth Training Centres or other custodial settings.
Risk of recidivism
When FSKY was before the Tribunal in 2018 in relation to the cancellation of his visa, the learned Member, Mr Maryniak, QC, heard evidence from Ms Elizabeth Warren, psychologist, and stated (T, p 749) at [38] of his decision:
In oral evidence, Ms Warren stated that the Applicant’s risk of relapse was on the ‘cusp’ of low to medium or just at the high end of low close to medium. Therefore, his risk of relapse to heroin use is not insignificant. To the extent that the Applicant maintains that his offending is entirely drug-related, it was submitted by the Respondent that there is at least a low to moderate risk of the Applicant re-offending and exposing the Australian community to more criminal behaviour. The Tribunal accepts this submission and finds accordingly.
Mr Simmons in his most recent report (A2) wrote that FSKY:
…is aware that should he relapse, then the probability of returning to offending and the problems that would ensue with regard to his immigration status would be significant. He has the support of family and should that continue, along with any employment will go a way towards his remaining substance free….Should FSKY remain substance free, there is little likelihood he will commit further offences.
I note that Mr Simmons also records, based on his discussions with FSKY, that the Applicant has undertaken ‘five or six residential drug related programs’. He has also undertaken a large number of courses, evidence of which was before the Tribunal, both while incarcerated and in the community, sometimes as the result of a Court order. While there was an abating of his offending in 2014 and 2015 up until the incident involving P, none of the other courses appear to have had much of an effect on preventing FSKY returning to re-offending.
Because Mr Simmons’ most recent conclusions were qualified by the conditions of FSKY’s knowledge of the potential effect on his migration status and the existence of a supportive family, both of which have not had a material effect in the past, I prefer the conclusion of the previous Tribunal that there is at least a low to moderate risk of FSKY re-offending.
CONCLUSION
The Tribunal is satisfied that FSKY has been convicted by final judgment of a particularly serious crime, within the terms of section 36(1C)(b) of the Act. The Tribunal has carefully considered whether the Applicant is (presently) a danger to the community. Given the number of times FSKY has had the opportunity presented to him to rehabilitate but has nonetheless re-offended, the Tribunal concludes that he is. Of particular concern to me is FSKY’s evidence that, in terms of circumstances of the most recent serious offending where he recklessly injured his former partner, he was not affected by heroin. In his evidence at the hearing, the Applicant said that he had taken ‘some sleeping pills’ during the day. I therefore conclude that his significant heroin addiction problem was not a central factor in that serious offending. It is also concerning to me that the 2015 offence was not the first time FSKY had been convicted of offences of that nature. As set out above, in 2009 he was also convicted of the offence of Fail to Render Assistance after an Accident, and a related offence of Fail to give name and address to injured. Together with the Recklessly causing injury conviction in 2000, I consider there is some element of unwillingness of the Applicant to take responsibility for his actions when he has been directly involved in hurting people, and that is significantly concerning.
It was submitted to the Tribunal that significant protective factors are available to regulate FSKY’s conduct if he is released into the community, notably the offer of returning to live with Ms SP and Mr HT, and perhaps with his other sister Ms LP. I accept that Ms SP and Ms LP have made some inquiries about local medical and pharmaceutical support that is available should FSKY return to live with Ms SP. It was also submitted that Ms SP’s offer of employment is another protective factor. The Tribunal accepts that employment is a significant positive factor in reducing a person’s propensity to re-offend, but I consider that the offer was somewhat inchoate. By his evidence, FSKY clearly did not know what his sister’s very early morning weekday routine is. His actual role at her café, both as he postulated and she suggested, was somewhat embryonic. In his evidence he spoke of perhaps living with Ms SP, or possibly with his other sister, Ms LP. It did not seem to me that he was invested in a clear plan to work at the café, but instead saw it as an option for him.
I do not doubt Ms SP’s good intentions, but I am not convinced there is a robustness in this plan. Mr HT told the Tribunal he had previously arranged for employment for FSKY, but that petered out after a relatively short period. Significantly, FSKY has lived for long periods in the household of Ms SP and Mr HT and their family, or at least, that has been his ‘home base’. He told the Tribunal in his evidence that he has had no other home, something corroborated by Mr HT. He also told the Tribunal that he was at their house when the police came to see him about the incident where he ran over P. This inclines me to the view that the provision of stable accommodation with family members – who I consider are obviously supportive – has not been a protective factor in the past. I note in the sentencing remarks in 2002 the Judge recorded that one of the drivers of FSKY’s offending at that time was some conflict within the family. That may not be the case now, but the Tribunal can understand that, with Ms SP, Mr HT and Ms LP all leading successful and productive lives and maintaining sustained employment or, in the case of Ms SP her own business, FSKY’s past conduct would be significantly frustrating.
FSKY has completed several targeted courses to encourage modified behaviour during various periods in prison but has invariably gone on to re-offend. It is accepted that he has been free of heroin for several years now, but that is in the context of a custodial and therefore protective environment and while on a methadone treatment regimen. Several warnings given to him by the Department, in 2006 and 2010 about the need to modify his behaviour or risk jeopardising his migration status have had no effect on curtailing his conduct.
I am not convinced that FSKY’s creditable abstinence from drug-taking in detention completely removes the element of risk of re-offending, especially as it was not his major vice of heroin that was apparently a factor in his most recent serious offending in 2015 involving the injury to P. Consequently, I find there are reasonable grounds to conclude that FSKY is a danger to the community.
The conclusion of the Tribunal therefore is that FSKY:
(a) Has been convicted of a particularly serious offence; and
(b) Is a danger to the community.
The consequence of that finding is that the decision under review must be affirmed.
DECISION
The Tribunal, under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, affirms the decision under review.
I certify that the preceding 149 (one hundred and forty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 30 June 2021
Dates of hearing:
16 and 17 March 2021
Counsel for the Applicant:
Ms Shannon Finegan
Solicitors for the Applicant:
Carina Ford Immigration Lawyers
Advocate for the Respondent:
Mr Adam Cunynghame
Solicitors for the Respondent:
Sparke Helmore Lawyers
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