FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1513
•27 May 2021
FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1513 (27 May 2021)
Division:GENERAL DIVISION
File Number(s): 2019/7880
Re:FYVY
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:27 May 2021
Place:Melbourne
Under section 43(a)(c)(ii) of the Administrative Appeals Act 1975, the Tribunal –
(a)sets aside the reviewable decision of the delegate of the Respondent dated 21 November 2019 to refuse the Applicant’s Protection (Class XA, subclass 866) visa; and
(b)remits the matter with the direction that the Applicant does not come within the criterion stipulated in section 36(1C) of the Migration Act 1958.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – refusal of protection visa – section 36(1C) of Migration Act – applicant is entitled to citizenship of the Republic of South Sudan – extensive criminal record – has 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 Australian community – what is meant by ‘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 – Tribunal should look at all criminal conduct – belief about danger to community must be contemporary – period since last offending – comprehensive plan in place if applicant released – abstinence from alcohol – tribunal satisfied applicant not a danger to the community – decision under review set aside with direction
Legislation
Administrative Appeals Act 1975, ss 33A, 37
Migration Act 1958, ss 5, 5M, 36(1C), 197, 198, 501, 501KMigration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, Sch. 5
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
DOB18 v Minister for Home Affairs [2019] FCAFC 63
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533
Vabanza v Minister for Immigration and Multicultural Affairs [1992] FCA 148
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 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (as later amended)
Exclusion (Article 1F) and Article 33(2) of the Refugee Convention; Version 6.0; Home Office (UK) – Published for Home Office staff on 1 July 2016 (United Kingdom)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 - Explanatory Memorandum; House of Representatives
Nationality, Immigration and Asylum Act 2002 (UK), s 72Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order (SI 2004/2010)
REASONS FOR DECISION
Senior Member D. J. Morris
27 May 2021
This decision relates to the review of a decision to refuse an application for a protection visa. Under section 501K(1)(a) and (2) of the Migration Act 1958 (‘the Act’), the Tribunal must not publish any information which may identify the Applicant or any of his relatives or dependants. Accordingly, he will be referred in these reasons by the anonym ‘FYVY’ and details that might identify him or relatives referred to will be anonymised.
FYVY is aged 33. He arrived in Australia in 2003 having been granted a Global Special Humanitarian (Class XB, subclass 202) visa. He does not currently hold citizenship of any country but a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (referred to hereafter as ‘the Minister’ or ‘the Respondent’) found that he is a national of South Sudan.
FYVY has a lengthy criminal history. In August 2016, his visa was cancelled under section 501(3A) of the Act, on the basis that the Applicant had a ‘substantial criminal record’. A delegate of the Minister decided not to revoke the cancellation. FYVY sought a review by the Tribunal, differently constituted, which affirmed the cancellation of the visa in March 2018. FYVY sought review of the decision by the Federal Court of Australia but was not successful.
In May 2018, FYVY applied for a Protection (Class XA, subclass 866) visa. On 21 November 2019, a delegate of the Minister refused the visa. The delegate accepted that FYVY was a refugee as defined by section 5H(1) of the Act, and that he was owed complementary protection by Australia. However, the delegate refused to grant the visa because the delegate decided that FYVY did not satisfy section 36(1C) of the Act. On 29 November 2019, FYVY applied for review of that decision by the Tribunal.
The authority for the Tribunal to review the decision to refuse the visa is found in section 500(1)(c)(i) of the Act.
HEARING
The hearing was held on 25 and 26 November,23 December 2020 and 4 February 2021 by videoconference, owing to the current public health emergency, and as permitted by section 33A of the AdministrativeAppeals Tribunal Act 1975 (‘the AAT Act’). The Tribunal notes without criticism that the protracted dates were owing to difficulties with video connexion to the Immigration Detention Centre (‘IDC’) on Christmas Island, where the Applicant is located. FYVY was represented by Mr Nick Mutton of counsel, instructed by Mr Tiernan Christensen. The Minister was represented by Mr Jonathan Barrington of counsel, instructed by Mr Adam Cunynghame, of Sparke Helmore Lawyers.
The Applicant gave evidence and was cross-examined. Other witnesses who gave evidence were Dr Nina Zimmerman, forensic psychiatrist; Mrs JS, the founder of a charitable organisation and a friend of FYVY; and Mr SM, brother of the Applicant.
The Tribunal admitted into evidence documents submitted under section 37 of the AAT Act (‘T’ documents); and two other bundles of documents, supplementary T-documents (‘ST’ documents) and further supplementary T-documents (‘FST’ documents).
The following documents tendered by the Applicant were also admitted:
(a)Application for review (Exhibit A1);
(b)Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) (Exhibit A2);
(c)Bundle of documents – witness statements of ‘Mrs JS’, ‘Mr SM’, ‘SS’ and ‘AA’ (Exhibit A3);
(d)Applicant’s submissions in reply (Exhibit A4);
(e)Applicant’s enclosures in reply (Exhibit A5);
(f)Further written submissions of Applicant (Exhibit A6);
(g)Letter from ‘SN’ dated 13 November 2020 (Exhibit A7);
(h)Letter from ‘DM’, dated 20 October 2020 (Exhibit A8); and
(i)Letter from ‘MDA’, dated 10 November 2020 (Exhibit A9).
The Tribunal also had regard for a Statement of Facts, Issues and Contentions (‘RSFIC’) submitted by the Respondent.
THE REFUGEE CONVENTION AND LEGISLATIVE FRAMEWORK
Australia is a signatory to the 1951 Convention Relating to the Status of Refugees (‘the Convention’), to which it acceded on 22 January 1954. Article 33 of the Convention reads:
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.
Therefore, Article 33(2) of the Convention provides that a refugee may be returned to a place where they have a well-founded fear of persecution if, having been convicted of a final judgement of a ‘particularly serious crime’, they are a danger to the country of refuge.
Before 2014, refugees who were refused a protection visa on the basis of Article 33(2) of the Convention were able to seek merits review of such decisions, and the interpretation of the Convention was taken to follow the principles of legislative interpretation. In 2014, the Parliament enacted the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. That legislation inserted section 36(1C) into the Act. Relevantly, the explanatory memorandum to the Bill tabled in the House of Representatives states, at paragraph 1235 that the new clause 36(1C) 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.
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.
(Emphasis added.)
Section 5 of the Act is the definitions clause. It relevantly provides a definition of ‘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 OPENING SUBMISSIONS
Counsel for the Applicant stated that the Applicant’s position before the Tribunal is that the sole matter to consider is whether FYVY is a ‘danger to the community’. Mr Mutton said it was conceded that FYVY has committed some serious crimes and contended that the number in that category was four, which is different from what was found by the delegate.
Mr Mutton said that while FYVY has a lengthy criminal history, it is explicable by a history of trauma and a lack of support. Counsel submitted that the Applicant now has that support and has demonstrated insight and has a strong motivation not to re-offend and stated that the expert evidence of Dr Zimmerman would support this conclusion. Mr Mutton said that the offending of FYVY is not of such seriousness that he is a ‘danger to the community’.
RESPONDENT’S OPENING SUBMISSIONS
Mr Barrington submitted, for the Minister, that there was no question that FYVY has been convicted in the past of serious crimes, and the dispute between the parties is over what number. Mr Barrington said that FYVY’s criminal history to date requires the Tribunal to affirm the decision because of the Applicant’s past offending in two States has involved the use of knives, violence against people, has been frequent and has involved the abuse of alcohol. Mr Barrington said that FYVY has been warned on several occasions about the effect on his immigration status if he continues to offend, but this had no apparent effect on his criminal conduct.
ORAL EVIDENCE AT HEARING
Evidence of the Applicant
FYVY told the Tribunal he came to Australia in 2003 with his older brother, Mr SM, and was aged about 14 at the time. He said he did not speak English but learned it while in juvenile detention.
FYVY said his mother was married before she met his father, but he took the surname of her first husband, because that was the cultural practice. He said his biological father had been killed in Africa. FYVY said he initially stayed with some African people who sponsored him for about six weeks and then moved into a house with his brother, who is about five or six years older.
FYVY said his mother subsequently also came to live in Australia, about two years after he did. Mr Mutton noted that the Applicant had been diagnosed with PTSD and depression and asked him whether he thought he was experiencing symptoms of those conditions when he arrived. FYVY said he thought he was because he was crying all the time and believed for some time that his mother had died. He said he did not initially understand what the problem was but later had counselling when detained at Villawood IDC every month for a period of nine months, undertaking a Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (‘STARTTS’) programme.
FYVY said he was then moved to Perth IDC and had been prescribed medication for a year, but was then told by doctors it was the wrong medication because he did not have schizophrenia and he was then told the correct diagnosis was PTSD and depression. He was placed on a different medication which he said he took for two or three years, and which helped.
When asked why he stopped taking the medication, FYVY said “every time I came out of prison, I went drinking straightaway and stopped taking them I did take them in prison”. He told the Tribunal he is currently not on any medication.
FYVY said he started drinking alcohol in 2004 because of “anger”. “I tried to hurt myself. I missed my Mum and thought no one cared”. “He said he realized later that he had developed a problem with alcohol at New Year’s Eve in 2018 when he had made an alcoholic drink from oranges which he was sculling and ‘got really drunk and started terrorizing the Centre’”. “The next morning, I never felt like that before, and realized alcohol was a problem”. “No one got hurt but I was swearing and trying to frighten people. The next day I felt everyone looking at me”.
FYVY said he had also used other drugs in the past: “Weed, I didn’t like it. Tried ice, didn’t like it. Tried ‘bupe’. The only drug I used to like was alcohol”.
Mr Mutton asked FYVY how often he last used ‘ice’ and when he last used it. The Applicant said about ‘four times', and the last occasion was in 2013 at Parklea Prison.
FYVY said he last used ‘bupe’ about two months ago (i.e. September 2020), but stopped because he had to pay for it.
When asked why he started offending, FYVY said: “Anger in my heart. I missed my Mum. I was looking for something, but I didn’t know what. When I wasn’t drunk, I didn’t do anything”.
Mr Mutton referred to the fact that several of the Applicant’s offences involved weapons and asked whether he often carried them. FYVY said that when he got stabbed in prison, he started making them, and carried one ‘sometimes’.
FYVY said that he had been stabbed on three occasions while in prison and on one occasion was taken to hospital (FSTD, p 6). He said after this incident he thought he should carry a knife.
FYVY was asked about 2005 offending when he was convicted of the offence of Robbery armed with offensive weaponing causing wounding/GBH and Aggravated assault with intend to rob and inflict ABH. The Applicant said that he was out drinking with two friends. He said one of his friends wanted to steal a car and was showing how it could be done by using a screwdriver in the ignition. He said another person was buying cigarettes and he asked him for a cigarette. “He got scared, he pushed me. I got scared. The screwdriver got out of my hand. I think I stabbed him in his stomach”.
When asked directly by the Tribunal whether he asked the man for money on this occasion, FYVY said: “No he dropped his wallet”.
The Applicant agreed that these events occurred in 2004 when FYVY was aged about 14 or 15.
FYVY was asked about another incident (TD, p 212) when he stole the bag of a woman travelling by train. FYVY said: “There were about five of us, including islander boys. They always carry scissors. We were looking for weed. One of them told me to find a woman and grab her bag just as the train door closes. I slashed her hand with the scissors. This one I feel bad about because she’s a woman. I don’t like people who do violence, and then I did it. I feel bad about both incidents, but the lady one more”.
FYVY was taken to an incident (TD, pp 195-196). He said he asked a man for money for goods, and the man started running. “I asked him why he was scared, and he kind of tripped.” Mr Mutton asked FYVY if he accepted that he grabbed the man’s necklace, but he said he did not accept this but pleaded guilty.
FYVY was taken to an incident where he and others accosted a man using an automatic teller machine (‘ATM’). He said “I saw a friend hit him in the stomach. One of my friends took his wallet. I took his phone.” When asked why he pleaded guilty, FYVY said “Because I took his phone”.
Referred to a 2013 incident where he was convicted of the offence of Demand property with menaces with intent to steal. FYVY said “I knew the person. I was at the station. I wasn’t drunk. I saw a Nigerian, who I knew, and said hello. I asked for money for VB. He gave me his wallet and started running. I did not rob him or do anything. I still got charged. Police came to the railway station and told me I was under arrest for robbery. I said why would I have stood here if I had robbed him”.
Mr Mutton asked whether he had used any violence. FYVY said, “No, I pleaded guilty to demanding money with menaces”.
FYVY was taken to an incident (TD, p 260) and asked if he remembered what occurred. “Yes. A man was using a leaf-blower. I wasn’t drunk. I asked him for a cigarette. He said f--- off you black c---. I walked off. His mate grabbed me. I remember crying in the police car”.
When asked directly by the Tribunal whether they were local council employees, FYVY said: “Yes, I didn’t threaten anyone. I had a Stanley blade in my pocket. I asked nicely for a cigarette.” FYVY said he did not know why he was carrying a box-cutter knife that day. He agreed that he pleaded guilty “otherwise I’d have to stay in for too long”.
Mr Mutton took FYVY to an incident in 2014 when he and another took a car and crashed it. His co-offender had a knife. FYVY said he knew the other person had a ‘pen knife’ at the time, and that the car-owner was a drug dealer. He said, “I’ve never had a gun in Australia in my life”.
FYVY agreed that he was found in possession of a ‘pen pistol’ but that it was incapable of being fired. FYVY said it was his friend’s and he asked the friend to have a look at it, and forgot to give it back, because they both got drunk.
FYVY was taken to a conviction for Contravening Family Violence Order in which he punched his partner several times to the head and cut her eye. He responded: “I used to tell her not to smoke ice. I heard she was pregnant. She kept kicking me out. I never hit her in the head. The door hit her on the side, and she bled. I never hit women”.
Mr Mutton asked FYVY why he then pleaded guilty to the facts at the Court. FYVY said that his partner had made a statement and the police had obtained the Order, so he felt guilty. When asked directly by the Tribunal whether he stated in Court that he did not hit his partner, FYVY said “Yes, I did”.
FYVY was asked about his time in immigration detention. He said for the first two years he was angry and frustrated and had made knives to carry. He said he had been attacked four or five times. He said he had felt scared when first in detention but no longer carried any weapon because “I have a different understanding now”.
When asked about an incident where he threw hot water at another detainee. FYVY said: “This is an example of why I am depressed. I got to the Perth IDC. I didn’t know [detainee named]. He insulted me. He is a former bikie. Officers said just stay away from him. I had a plastic knife, so he thinks I had a weapon. He came and attacked me again”.
FYVY was referred to an incident in January 2019 (TD, p 411). He said he had borrowed a cigarette from another detainee. It was canteen day and the detainee wanted cigarettes. “I wanted to prove he was weak. I was walking towards the canteen. That day I had to prove a point that I can fight. I never did this before, took the first swing. He had an attitude and an ego”.
FYVY was taken to another incident (TD, pp 408-409) in which a fellow detainee said he had come into the detainee’s room and attacked him. FYVY said “Eight of them came into my room. [Detainee named] then hit me in my mouth and knocked out two teeth. I was angry. I went to another unit. I went to his room. He bit me. I got injured on my ankle. I kicked him on his ribs and hit him on the face. I was hurt, he wasn’t hurt at all”.
FYVY was referred to another incident in October 2019. He said another detainee had been dealing in ‘bupe’ and ‘ice’. He said the detainee was ripping others off. “I had a ring on, and I hit him. The ring cut him”.
FYVY was asked about an incident (TD, p 395) where he threw an item over the fence at the IDC. He said that he had been asked by another detainee to throw it, and knew it was drugs but didn’t know it was ‘ice’. When asked why he did it for others, FYVY said “to blend in”.
FYVY was asked if he knew Mrs JS. He said he did, because she sponsored his brother, (SM’s) wife from Kenya to come to Australia. He said he first met Mrs JS in prison in 2013 and he speaks to her every couple of days. She sends him books or clothes and “is always there for me in every way”.
FYVY was referred to Mrs JS’s statement before the Tribunal that referred to the Applicant being offered employment if released into the community. He said: “A couple of years ago I didn’t understand. Now I realize I was looking for help. Never before has someone like Mrs JS helped me. I was looking for someone who would understand me, and now I see there is serious help”.
FYVY confirmed he would engage with STARTTS, Alcoholics Anonymous and going to Odyssey House. He said: “All I want to do is be a normal person, to work and be involved in the community. I have spent 15 years being stupid and committing serious crimes, and yes, I will engage”.
FYVY said that his son is a strong motivation for him to change. He told the Tribunal that his son would soon turn 8 (in February 2021) and that he talks to him every day in a videocall and arranges gifts for him. He said he tried not to think about returning to South Sudan.
Mr Mutton asked FYVY if he remembered receiving warning letters from the Department responsible for Immigration about possible visa cancellation. FYVY said: “I don’t remember. Maybe. I didn’t care or understand anything”.
Under cross-examination, FYVY said he accepted the criminal history in the papers before the Tribunal (TD, p 136). In terms of the 2005 robbery and aggravated assault convictions, Mr Barrington said if he was not asking for money, why did he plead guilty. FYVY said: “I knew I did something wrong…I didn’t know I stabbed him until he ran away”.
FYVY agreed that he was on bail when he took the bag from the woman travelling on the train, and said he was ‘tipsy’ but not drunk that day. Mr Barrington noted that the factual summary said that the Applicant pulled a knife and told the woman to give him money. He replied: “No, I had scissors. I slashed her hand to make her let go of the bag”.
FYVY agreed that he had several convictions involving weapons and that he had begun to carry and use weapons by around 2005.
FYVY was referred to a warning by a Judge (TD, p 244) in 2005 about the possibility of him being sent back to South Sudan and asked if he accepted it was a clear warning. The Applicant said he didn’t remember the Judge saying that, but agreed it was a clear warning to him.
Mr Barrington took FYVY through a range of probation and control orders placed on him and that he had been called up for breaching orders, which he accepted. FYVY agreed that in 2006 he was placed on a bond and directed to undertake counselling and educational development. He responded: “They told me this and then I went out and drank. I was weak”.
FYVY said: “I saw the Judges being fair to me, and when I went outside, I’d drink and do stupid things. The Judges have always been nice and fair and given me probation and bonds”.
FYVY agreed that he was often drunk, often approached strangers and asked for things, and sometimes made threats. When asked whether he sometimes used weapons and violence towards people, the Applicant said, “I don’t take weapons to harm people, I use them to steal a car”.
Mr Barrington asked FYVY about the incident in May 2015 in which he was convicted of assaulting his partner. He said: “I never hit her. She hit her head by the door.” The Applicant was referred to what he told Dr Zimmerman, that he had thrown his partner on the lounge and she hit her head. He then said: “I think so. Either that or on the door. I never hit her; I don’t believe in hitting women”.
Mr Barrington suggested to FYVY that he had told conflicting stories about the events of that day. The Applicant said, “I only told the truth”.
FYVY agreed that he was offered support in 2006 by a Court and he replied: “Yes. I was young and stupid. I wasn’t strong enough to do them by myself. As soon as I got out, all I could think about was going out with the boys for a drink”.
FYVY agreed that his last day in the community was in May 2015. He said he had always had the support of his mother who had consistently told him not to offend and not to drink. He agreed that he had a parole condition to live with her, which he breached.
FYVY said that his former partner rang him one day and told him that their son had died. In reality, she had put him up for adoption, but then decided she wanted to keep him. FYVY agreed that this occurred and said “It broke my heart. I was going crazy and was not myself for six weeks or so”.
Evidence of Dr Nina Zimmerman
Dr Zimmerman, forensic psychiatrist, gave evidence and was referred to a psychiatric report she had prepared on the Applicant dated 11 April 2020 (part of Exhibit A5).
Dr Zimmerman said she had been furnished with a copy of the T, ST and FST documents to assist her in her report. She said she focussed on the incidents with which FYVY has been involved in prison in making her risk assessment.
Dr Zimmerman said that, without intervention, her conclusion is that the Applicant would pose a medium to high risk of violence and re-offending. She said that there is a clear diagnosis of PTSD which is now partly in remission, and alcohol misuse disorder. She said her examination showed that FYVY was using alcohol from about a year after arriving partly in relation to the stress of his childhood experiences and was likely to have been experiencing depression and PTSD at that time. Dr Zimmerman said she consulted the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (‘DSM-5’) and FYVY exhibited symptoms consistent with exposure to repeated trauma and intrusion symptoms such as disturbing dreams. She said he avoided talking about these past experiences which illustrated a lack of trust, fear, hypervigilance, and irritability.
In respect of his conduct in prison, Dr Zimmerman said that FYVY talked a lot about threats and felt he was being persecuted in prison, and arming himself was a response to his feeling of threat and hypervigilant state. Dr Zimmerman said she considered past reports were consistent with severe PTSD which she considered was now less severe but still present. He said his nightmares are less frequent and he had become religious and was praying, but she felt he would still be at risk at times of stress.
Dr Zimmerman said that FYVY’s depression is a comorbid condition, and his alcohol misuse is also comorbid as people with depression often tend to self-medicate. Her opinion is that FYVY developed a physical addiction to alcohol.
Mr Mutton asked Dr Zimmerman if the level of risk of re-offending is affected by the reduction in his PTSD. She responded that FYVY would be better able to engage with a therapist and needs to work intensively. She said FYVY was aware of his history of alcohol dependence and acknowledged to her that he took alcohol on New Year’s Eve in 2018 and knew this was a poor choice. Dr Zimmerman said that the Applicant talked to her about attending Alcoholics Anonymous meetings and had a level of insight, knowing he suffered from PTSD.
In terms of the factors that contributed to FYVY’s offending behaviour, Dr Zimmerman said that PTSD is the indirect cause, as was a disinhibited state owing to drinking. He was with a peer group who were antisocial and was in a vulnerable state when he came out of prison, with his PTSD condition increasing the level of perceived threat.
Dr Zimmerman was asked about incidents in immigration detention involving FYVY. She said most of the incident reports she had read related to minor incidents. She said that long term detention can lead to a loss of power and a feeling of hopelessness, and this was prominent in her assessment of the Applicant. She said that conduct in prison and detention is relevant to assessing conduct in the community in the future but felt that the community would clearly be a safer environment for FYVY than prison was.
Dr Zimmerman said she had reviewed the history of FYVY’s medication and noted he was for a time prescribed an antipsychotic, which she felt was not appropriate as she was not of the view that he has, or had, schizophrenia. She said it was unfortunate that FYVY has not engaged in trauma services because when he was younger, he was repeatedly referred but did not engage.
Dr Zimmerman said that her concluded opinion was that FYVY is of now ‘low to medium’ risk of re-offending if interventions were in place. She noted he had a history of lack of engagement but with protective factors in place, there were in her opinion good prospects of engagement now. She said stable accommodation is crucial, as is work or education and productive and prosocial activity. Dr Zimmerman said the prospect of being returned to South Sudan must present a factor to discourage offending, as would the presence of his son. Dr Zimmerman said that FYVY spoke poignantly about his son and noted that his father-in-law said he would be welcome to go and live with them.
Mr Mutton asked Dr Zimmerman how important Mrs JS, or someone like her, be for FYVY’s likelihood of re-offending. Dr Zimmerman said this role is crucial, and the role is similar to a mental health worker who would take someone to appointments and provide them with support.
Dr Zimmerman said she was not aware that FYVY had been assessed by Odyssey House but was of the view that the STARTTS programme is a highly specialised service that is precisely suited to someone with PTSD.
Under cross-examination, Dr Zimmerman said she had undertaken a two-hours face-to-face assessment of FYVY and applied the Historical Clinical Risk (HCR-20) assessment tool, which she said is designed for persons in prisons or custodial settings.
Mr Barrington asked Dr Zimmerman if it concerns her that FYVY has promptly resumed drinking after being released from prison in the past. She said that his prison sentences have not been long, and he has not had ‘wrap around’ services in the past. She said a key factor in her assessment is the presence of Mrs JS and a prolonged abstinence from alcohol.
Dr Zimmerman confirmed the conclusion in her report that FYVY has good prospects of rehabilitation because he is older. She told the Tribunal that until the age of around 25 the brain is still within the adolescent phase and more stability is seen in patients as they pass that age. She said that the incidents in custody which sometimes have involved violence are ‘certainly concerning’ and that FYVY needs to work on therapy for his PTSD which will reduce his hypervigilant stage.
When asked about the incident concerning his former partner in which FYVY characterised it as her injuries being caused by a slammed door, Dr Zimmerman said she was concerned at the inconsistent account of what took place and considered it evasive. She said: “I think he is keen to change. He has a lot of shame about that incident. There is no doubt that he minimises it”.
Mr Barrington referred to a pre-sentence report (FSTD, p 63) from 2009 in which the Applicant made certain commitments and asked if it concerned Dr Zimmerman that he had expressed good intentions in the past, only to not follow through. She responded: “No doubt he has said this in the past and has been told he needs counselling and support. He was in his early 20s with adolescent brain development at that stage. He is 11 years older. That cannot be overstated. He has had a sustained period away from antisocial peers. He has wrap around services available to him. People do change”.
Evidence of Mrs JS
Mrs JS gave evidence that she is the chief executive officer of a charitable organisation which has assisted young Africans since 2008. She said the organisation operates out of Uganda and assists ‘street boys and children’. She employed five staff in Uganda and has sponsored 400 students into schools. Mrs JS says she goes to Uganda twice a year for one month at a time.
Mrs JS said she was familiar with FYVY’s background and had dealt with several other young African men with a history of violent behaviour, and that it took a long time to establish their trust. Mrs JS said she has volunteered at a South Sudanese Centre since 2010 and was involved in mentoring, placing some in private schools and helping some on the first steps of employment.
Mrs JS said she first met FYVY in 2013 through his brother, Mr SM, who had come to Australia via Uganda. She said: “He trusts me. I can speak to him and explain things to him and can see the penny drop. I feel like a stepmother to him and Mr SM”.
Giving an example, Mrs JS said she had explained the effects of alcohol on his conduct and supported him doing an Alcoholics Anonymous course when in detention at Villawood IDC. She said she had seen a long-term improvement in his conduct and ‘now he is rational’. She said FYVY opens up to her about how he is feeling, whereas he formerly was very guarded.
When asked how she would help FYVY if he is released into the community, Mrs JS said: “The first two days will be difficult, it will be overwhelming. We need to settle him with Mr SM and his family and make sure he feels safe and comfortable. The idea is to keep him busy. Two or three days of labouring, plus the STARTTS programme. Employment will give him self-worth and the South Sudanese community will get him involved in sport”.
Mrs JS confirmed the employment she was referring to is the offer before the Tribunal from Mr DM for FYVY to be employed in Mr DM’s tree management business. Mrs JS said that Mr DM was a police officer before and she had provided him with FYVY’s history of incarceration and his criminal history.
Mrs JS said her intention was to undertake intensive two-weeks support with FYVY and then pull back and see him every fortnight and hoped that within six months to a year he will have become comfortable in society.
Under cross-examination, Mrs JS said she had started mentoring FYVY when he was in Villawood IDC in around 2016 and had visited him several times, but also kept in touch monthly by telephone. She said she had sometimes visited with the Applicant’s mother and his brother, Mr SM.
Mrs JS said she was aware of FYVY’s history of some violent offending and considered that some of his conduct in immigration detention has been reactionary. Mr Barrington asked whether she was aware he had not taken up previous officers of support. Mrs JS replied: “Yes. I understand these African young men. We talked about triggers. He’s like a little child who hits out, but then can be stopped. He is ready to be helped”.
Mr Barrington pointed out that FYVY’s son is now aged 8 and has not been a protective factor in the past. Mrs JS said: “I don’t think he got it before. Four years in detention is the longest he has been off alcohol. He is not the same person he was four years ago”.
Mrs JS said she considers that FYVY now has insight and knows his triggers and knows that his aggression comes from pain. She says he now listens and shows more maturity. “I have explained to him how his victims might feel. He’s hit the 30-year mark and understands life a whole lot better”.
Evidence of Mr SM
The Applicant’s brother, Mr SM, gave evidence. He said he speaks to FYVY once a week. He said he came to Australia from Uganda and FYVY was already here; they had been separated some time before.
Mr SM said he lives with his partner and they have a nine-month-old baby. He said that his partner also knows FYVY and speaks to him more frequently, because of Mr SM’s work. Mr SM said that he and his partner were happy for his brother to come and live with them and get a job cutting trees. He said: “I told him he has wasted his life. He is a changed man now. Now he wants to do better things with his life”.
When asked what he would do if FYVY breaks the law again, Mr SM said that if his brother does the wrong thing, he will call the police.
Mr SM says he knows Mrs JS and that she had taught him how to live in Australia, and how to avoid the wrong groups. “I don’t drink or smoke because of Mrs JS”.
Under cross-examination, Mr SM said he had tried ‘quite a lot’ in the past to stop FYVY committing crimes, but he had not listened to him. Mr SM said that now that his brother has his own son, he believes he would now listen. He said that he had set up a room for his brother in his house, for as long as he needs.
APPLICANT’S CLOSING SUBMISSIONS
Mr Mutton reiterated that it is accepted that the Applicant has committed serious crimes, but submitted that there are reasonable grounds to say he is not a ‘danger to the community’, because of the supports from Mrs JS, the plan for future engagement, and the professional opinion of Dr Zimmerman.
Mr Mutton said that the concept of ‘danger to the community’ must link with the crimes to which the Applicant has been convicted, and referred to obiter remarks by Davies J in WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060, at [20] (‘WGKS’) where Her Honour said “….there must be a link between the conviction and the consideration that the person, so convicted, constitutes a danger to the Australian community”.
Mr Mutton submitted that the Tribunal is limited to considering danger of ‘a similar kind’ and that in written submissions in reply (Exhibit A4), conceded that seven offences referred to by the Minister are “particularly serious crimes”. Mr Mutton said he accepts that other offending is taken into account, and that the Applicant accepts that the often cited decision of DP Tamberlin in Re WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (‘WKCG’) contains a list of factors relevant to assessment of risk.
Mr Mutton referred to the definition of ‘serious Australian crime’ in the Act and contended that this definition does not capture threats and that, for instance, the conviction for demanding property with menaces does not include evidence that this offending involves violence. Mr Mutton said that the Tribunal must be satisfied that the ‘danger to the community’ is ‘present danger’, citing Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63, at [18] (‘DOB18’).
Mr Mutton said that the Applicant accepts the analysis of the law submitted by the Respondent more generally and that the Tribunal is required to “apprehend what is the acceptable level of risk” (see Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148), and that ‘danger’ in section 36(1C) of the Act means, in the obiter remarks of Logan J in DOB18, “present and serious risk”. Further, the Applicant submitted that it is necessary for the Tribunal 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” (see WKCG). Mr Mutton noted that, at [26], DP Tamberlin in WKCG said:
The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
Counsel for the Applicant submitted that the Tribunal must be “comfortably satisfied” on the balance of probabilities that FYVY is a danger to the Australian community. The test drawn from Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’), and noted that the delegate of the Minister has found that FYVY is a refugee under section 5H(1) of the Act and is owed complementary protection and that the Applicant “faces a risk of serious harm and possibly death if he is refouled to South Sudan, and section 197C of the Act imposes a duty on an officer to report him under section 198 irrespective of Australia’s non-refoulement obligations.” Mr Mutton submitted that to reach a conclusion that FYVY is a danger to the community, the Tribunal must be satisfied to a sufficiently high degree proportionate to these consequences.
In respect of FYVY’s offending in 2004, dealt with by the Courts in October 2005 (TD,
p 212), which led to an aggravated assault conviction, counsel for the Applicant conceded that this offending meets the definition of a ‘particularly serious crime’. This incident was where a man using an ATM was stabbed. FYVY said in his evidence that he had a screwdriver in his sleeve, and that is reflected in the sentencing remarks.
In respect of the Applicant’s offending in grabbing a bag from a train traveller where the victim suffered minor lacerations, FYVY was placed on a good behaviour bond. Mr Mutton submitted that this offending was unplanned, and the Applicant has shown significant remorse for the offending, particularly against a woman. Mr Mutton also noted this offending was some 16 years ago.
In respect of the Aggravated robbery conviction, Mr Mutton noted that FYVY pleaded guilty and conceded that this means he accepted all the elements of the offence (vide Maxwell vThe Queen [1996] HCA 46; (1996) 184 CLR 501). In respect of the convicting for the offence of demanding property with menaces, which related to the taking of a wallet at a train station. Mr Mutton noted that FYVY waited for the police and said that there was no violence, which must be accepted because of the nature of the charge, and noted that the Applicant was initially given a bond.
In respect of the conviction for the offence of Armed with attempt to commit indictable offence, Mr Mutton noted that the Applicant was carrying a box-cutter with the blade retracted and pleaded guilty. Mr Mutton noted the evidence of FYVY that on one occasion he was carrying a pen-pistol which was not functional and, while technically a firearm, it could not fire, and the Applicant knew it was not functional.
Mr Mutton said that the Applicant accepted that any family violence is of concern and the offence of which FYVY was convicted was an aberration and there was no other instance of domestic violence in the Applicant’s history.
Mr Mutton submitted to the Tribunal that it is accepted that FYVY’s offending history is of concern but in context said that much of that offending occurred when the Applicant was a young man, it was mainly opportunistic offending and connected to alcohol misuse and low-level stealing.
Mr Mutton said that the Applicant has now a desire to stop offending and has the right supports in place, particularly a case manager in the person of Mrs JS, which is significantly different to the previous occasion when FYVY had completed prison time, and noted
Dr Zimmerman’s oral evidence that the degree of risk of FYVY re-offending is “in the low to medium range”.
RESPONDENT’S CLOSING SUBMISSIONS
Mr Barrington said that there was a dispute between the parties as to how many of FYVY’s past offences constitute ‘particularly serious crimes’, and submitted that it would be the safest course for the Tribunal to consider four specific convictions:
·Conviction in October 2005 for the offence of Robbery armed with offensive weapon causing wounding/GBH (for which FYVY received an 18-months suspended sentence and an 18-months bond);
·Conviction in October 2005 for the offence of Aggravated assault with intent to rob and inflict ABH (for which FYVY received an 18-months suspended sentence and an 18-months bond, to be served concurrently);
·Conviction in 2007 for the offence of Assault occasioning actual bodily harm (for which FYVY received a six-months prison sentence); and
·Conviction in 2009 for the offence of Aggravated robbery (for which FYVY received a sentence of three years’ imprisonment with a non-parole period of 20-months).
The Respondent submitted that the risk that FYVY poses to the Australian community is the same risk that comes from offending: that he makes demands usually of strangers, that he demands money, and that he often uses weapons.
Mr Barrington said that the so-called Briginshaw test has no application in these proceedings, because very little of this case relies on ‘inexact proofs’ and that, insofar as application of the principles of Briginshaw imposes a higher standard than the statute requires, it changes the statutory test and imports a form of a balancing exercise, and that what danger FYVY would face (on the basis of the delegate’s finding in that respect) if he is returned to South Sudan is not relevant to the Tribunal’s considerations.
The Respondent submitted that ‘all the offending of FYVY has been very serious’ and that he has been ‘unequivocally dangerous’, but the only question is whether he continues to be a danger. Mr Barrington submitted that FYVY has been a frequent and repeat offender who has amassed some 40 offences, and 19 of them are in the ‘more serious’ category.
Mr Barrington said that the Courts have used various tools to try to modify FYVY’s conduct but that none of them has worked and he has not been deterred in re-offending. The Respondent accepted that some of the reports of conduct in immigration detention are hearsay, but noted the Tribunal is not bound by the rules of evidence. Mr Barrington submitted that it would appear that FYVY has the appropriate supports in the community now, but he has had them before and, despite the birth of his son, he has continued to offend. Mr Barrington conceded that there was little doubt about the earnestness of
Mrs JS, but submitted that she cannot ‘make’ FYVY engage.
CONSIDERATION
At the outset, the Tribunal makes clear that it rejects submissions that part of its consideration in this matter is what might or might not await FYVY if his protection visa is refused and he is repatriated to South Sudan. These submissions with respect misunderstand that the purpose of section 36(1C) of the Act is to put into domestic law the legislative exception that the Refugees Convention already makes provision for in Article 33(2). This exception was referred to as a ‘compromise’ in the relevant discussion by Kirby J 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.
In short, if it is concluded 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 (see SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40, at [27]).
Deputy President (‘DP’) Tamberlin said in WKCG, 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.
The considerations listed in WKCG are useful tools in making an assessment as to whether a person is a ‘danger to the community’. However, it would be a misreading of Deputy President Tamberlin’s decision for this list to be taken to be exhaustive. The learned Deputy President made clear that regard must be had to all the circumstances of each individual case.
The Tribunal notes that there was something of a dispute between the parties as to which of FYVY’s offending should be categorised as a ‘particularly serious crime’. It would seem to me that a part of the assumption by both parties is that such a crime must involve violence. I do not consider that is a correct assumption. Section 36(1C)(b) of the Act contains a note which directs the reader of the Act to section 5M. Section 5M relevantly refers to 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’. Thus, proper statutory interpretation leads the Tribunal to conclude that if a person has been convicted of a ‘serious Australian offence’, that automatically comes within the compass of ‘particularly serious crime’. But it is not a coterminous definition. It is clearly intended that decision-makers should accept that category of offending as being relevant to section 36(1C)(b), but not that a decision-maker should not fairly consider other relevant offending. The Parliament, it would seem to me, has deliberately provided that this definition is not confined, which would be consistent with the overall object of the Act (see section 4(1), in the sense of providing a regime of regulation of non-citizens in Australia in the national interest. An examination of the 2014 explanatory memorandum does not shed any further light, but it does repeat the word ‘includes’, which supports my conclusion that the definition is not legislatively confined.
Davies J considered these provisions in WGKS. Her Honour said:
Contrary to the applicant’s submission, a construction that imports notions of “exceptional criminality” or “most serious criminality” into the concept of “danger” puts a gloss on the word “danger” in s 36(1C)(b). In my view, there is no warrant, textually or contextually, for importing such notions, as the qualitative assessment of criminality considered serious enough to cause a person to lose the protection against refoulement is contained in the gateway requirement for s 36(1C)(b) to apply, namely that the person has been convicted by a final judgment of a “particularly serious crime”, being a phrase which has the defined meaning in s 5M of the Act. The person having been so convicted, the inquiry is whether there are reasonable grounds to consider that the person is a “danger to the Australian community”. It was argued that what will be sufficiently prospective offending to make the person a “danger to the Australian community” should not be answered solely by reference to the statutory definition of “particularly serious crime” in s 5M of the Act which, it was said, is broad enough to encompass criminality such as minor assaults because the maximum penalty of a crime is used as the reference point. Reference was made to the commentary on Art 33(2) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (codified in s 36(1C)) in The Refugee in International Law (3rd ed, Oxford University Press, 2007) where the learned authors, Goodwin-Gill and McAdam, state at 240 in criticism of Australia’s codification of the definition of “particularly serious crime”:
... a priori determinations of seriousness by way of legislative labelling or other measures substituting executive determinations for judicial (and judicious) assessments are inconsistent with the international standard which is required to be applied, and with the humanitarian intent of the Convention. After all, what is at issue here is action by the State in manifest disregard of what is recognized as serious danger (persecution) to the life or liberty of a refugee…
(emphasis in original)This criticism of the legislative approach that Australia has taken does not inform the proper interpretation of s 36(1C)(b)of the Act. Parliament has chosen to adjudge the seriousness of criminality triggering the criterion in s 36(1C)(b) by reference to a statutory definition of “particularly serious crime” in s 5M of the Act. What operates as a restriction on whether the protection may be lost as the result of conviction for a “particularly serious crime” is the factual inquiry as to whether there are reasonable grounds to consider the person a danger to the Australian community. Whether there are such grounds will be fact-specific in each case. In some cases, the nature of the “particularly serious crime” committed may be sufficient reason in itself for a decision-maker to consider on reasonable grounds that the person is a danger to the Australian community. In other cases, the nature of the crime may not be sufficient reason in itself. It does not follow as a matter of course that because a person has a conviction for a “particularly serious crime” (within the defined sense) there are reasonable grounds to consider that the person is a “danger to the Australian community”. If that were the test, the criterion for the exception would be the conviction itself, which is not the case, as under s 36(1C)(b) such a person does not lose the protection against refoulement unless the person is also considered on reasonable grounds to be a “danger to the Australian community”. That is, it is not enough to lose the protection against refoulement that the person be finally convicted of a “particularly serious crime”. The person’s conviction for a “particularly serious crime” founds the assessment as to whether the person is a danger to the Australian community but in all cases, the question whether a person constitutes a danger to the Australian community is one of fact and degree (DOB18 at 655 [78] per Logan J). Critically, in making that assessment, there must be a link between the conviction and the consideration that the person, so convicted, constitutes a danger to the Australian community.
I therefore do not accept the submissions of counsel for the Applicant that the concept of ‘danger to the community’ must link to the particular crimes for which FYVY has been convicted and that the Tribunal is limited to considering offending ‘of a similar kind’. What I interpret Her Honour to be saying in WGKS in terms of the ‘link’ is that the fact of being convicted of a ‘particularly serious crime’ is a prerequisite to a person coming within the compass of the exception; the learned Judge is not suggesting whether or not on reasonable grounds the person is ‘a danger to the community’ is an assessment to be made based on the nature only of that offending.
‘PARTICULARLY SERIOUS CRIME’
My conclusion therefore is that the question of what is a ‘particularly serious crime’ is somewhat of an arid debate. A conclusion on the question must be based, in the end, on the decision-maker’s assessment, drawing on the nature of the crime, the penalty imposed (especially the length of a custodial sentence), and other relevant materials such as the comments passed on sentence. A decision-maker is not confined to consider only offences which fall within the Act’s definition of a ‘serious Australian offence’, but may reasonably examine other offending where there is objective evidence that it is serious offending, even if the other requirements for an offence to be a ‘serious Australian offence’ may not be met. The key consideration is an objective assessment of the circumstances of the offending in the particular case.
The law in Australia in regard to Article 33(2) of the Convention may be contrasted with that of the United Kingdom. In the UK, the Nationality, Immigration and Asylum Act 2002 (‘UK Act’) provides, at section 72:
Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2)A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is:
(a) convicted in the United Kingdom of an offence; and
(b) sentenced to a period of imprisonment of at least 2 years.
…
(4)A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if –
(a) he is convicted of an offence specified by order of the Secretary of State,
…
(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.
A manual produced for Home Office staff in the United Kingdom titled Exclusion (Article 1F) and Article 33(2) of the Refugee Convention, provides some guidance to decision-makers in that Department of State who are making decisions or preparing advice to the Secretary of State for the Home Department, who has responsibility for immigration policy in Her Majesty’s Government. It emphasises to those staffs that the presumption contained in section 72 of the UK Act is rebuttable, and that any evidence provided by the individual must be carefully considered in assessing whether they are a ‘danger to the community’. The manual goes on to say that whilst section 72 provides an automatic presumption where someone has been sentenced to a period of imprisonment of at least 2 years:
“this does not necessarily mean that individuals whose crimes attract shorter sentences cannot be considered for refusal … or removal under Article 22(2) of the Refugee Convention. However it must be considered that an individual represents a danger to the community and as such it is unlikely that this threshold will be met where the sentence falls short of the provisions in section 72.”
I set out the situation in the United Kingdom only to provide context in how another jurisdiction has tackled the challenge of putting into domestic law a legislative apparatus to address the exception provided in Article 33(2) of the Convention.
Section 36(1C) of the Act contains no presumption as in the UK Act. It is also 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) therefore requires a decision-maker to undertake a two-step process. Has the person been convicted by final judgement 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. It does, however, seem clear to me in Australia that 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. Additionally, 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.
In deciding whether or not, on reasonable grounds, a person is a ‘danger to the community’, it is necessary to look at all of the offending of the person. In the examination of a person’s criminal history, apart from the elements that constitute the definition of a ‘serious Australian offence’, it is sensible to give heavier weight to convictions which relate to:
(a) indictable offences in other than Courts of first instance;
(b) offences against the person; and
(c) offences which attracted a custodial sentence.
It is also relevant to consider where there might be a pattern of similar offending which cumulatively might constitute a ‘danger to the community’, as well as whether the person has a history of disregarding orders of the Court designed to ameliorate his or her behaviour.
However, it would be wrong to use these considerations as a straitjacket, just as it is a misreading of DP Tamberlin’s list of relevant considerations in WKCG as exhaustive or in any way confining. As set out in section 72(4) of the UK Act above, the United Kingdom has addressed this particular issue in considering Article 33(2) of the Convention by providing that the Secretary of State make a statutory Order, which must be tabled in Parliament and is subject to annulment or, as we say in Australia, disallowance. The Order lists what is a ‘particularly serious crime’ in England and Wales to guide decision-makers. It is perhaps easier there to compile such a list than it is in this country, with our federal arrangement relating to criminal law. A perusal of the list of crimes encompassed in that Order includes, as one would expect, rape, aggravated assault, and making threats to kill. But other offences which one would objectively consider ‘particularly serious’ are also included, for instance a conviction for sending explosive devices through the post, or possessing without lawful excuse chemicals which may be used for biological contamination. Just as a person who has been significantly involved in drug trafficking might not strictly have committed a crime against the person, such conduct is significantly detrimental to the integrity of the community (to borrow the term used by Kirby J in Singh). Equally, a conviction for major fraud, which axiomatically does not involve violence or damage to property, might constitute a ‘particularly serious crime’. It all depends on the particular case.
I am satisfied based on his 2009 conviction for Aggravated robbery and his other more serious offending that FYVY has been convicted of a ‘particularly serious crime’.
‘DANGER TO THE COMMUNITY’
It is also important to note that part of the exercise the Tribunal is undertaking is whether FYVY 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, quoted above, it 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 following words are a dependent clause, meaning the criminal convictions are the genesis for initiating the section 36(1C) assessment, the second step of the assessment 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 (mirrored in section 36(1C)) as ‘plain and simple English’. It seems to me that the word ‘danger’ in ordinary everyday language has a different shade of meaning from the word ‘risk’. To use an analogy, it is, for instance, always somewhat of a risk to cross an arterial road, but a risk that pedestrians calculate and accept every day. However, it may be said to be dangerous to cross the same road on a blind corner, or at night in dark clothing. 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.
In my view, therefore, ‘danger’ in section 36(1C) must be read fully in the context of the exception in Article 33(2); it means more than simply a risk.
The seriousness and nature of the crimes and the sentences imposed
FYVY’s criminal history dates from his first conviction in the Children’s Court in 2004. He had five appearances in the Children’s Court and was dealt with by a range of juvenile justice sanctions. The Tribunal does not place great weight on this offending because it was offending as a minor, though sometimes that can be a precursor. However, it is concerning that FYVY’s very early offending involved accosting a victim using an ATM and demanding money and then injuring the person, fortunately not seriously. The next offending involved threatening a female train traveller, grabbing her bag and, in the ensuing altercation, the victim incurring a minor laceration to her hand.
There is a depressing succession of what I might term street thuggery by FYVY, threatening strangers and demanding money or cigarettes, sometimes brandishing a knife or blade. I note the competing submissions about the pen-pistol FYVY carried in one incident and counsel for the Applicant submitting that, while technically a firearm, it was not functional. I do not consider that is relevant when such a weapon may be used to frighten someone or as a means to rob them. The victim does not know the device could not function.
In terms of FYVY’s conviction in 2015 for the offences of Contravene family violence safety notice intending harm or fear and Unlawful assault, for which he received a prison sentence of 95 days, that incident involved him coming into the home of his former partner and their son. The son was fortunately not present. FYVY punched his former partner to the head several times which resulted in a laceration above her right eye. While I may accept some of the evidence of FYVY that she had told him their son had died, and then had put him up for adoption, and then changed her mind, which had greatly distressed him, this type of conduct is reprehensible; and FYVY’s cavilling about the circumstances and providing different accounts to Dr Zimmerman and then to this hearing indicate to me he still does not entirely accept – five years on – what occurred. Dr Zimmerman’s view was that he was ashamed at this incident. So, he should be. While I note there was no other domestic violence offending, this conduct is inexcusable.
Mitigating or aggravating circumstances
The Tribunal accepts that FYVY came to Australia in traumatic circumstances involving the killing of his father, his separation for many years from his mother, and flight from a civil war. The Respondent conceded that FYVY has “on any view, experienced genuine suffering”.
The Tribunal takes due notice of the professional opinion of Dr Zimmerman, which was in turn based on her professional assessment of FYVY’s medical history, that he has PTSD and was suffering a Major Depressive Disorder when she examined him in April 2020 (Exhibit A5). I also note Dr Zimmerman refers to a 2019 reference to FYVY reporting a history of ‘numerous head injuries’ as a teenager.
It may be accepted that alcohol abuse has been a major factor in FYVY’s offending. He freely admitted that, and told the Tribunal that this was a major driver of his criminal conduct and that, while he dabbled in drugs, he was not a consistent user of any illicit drugs and it was over-drinking that has been his main challenge.
Drinking of course is not a legal excuse for criminal culpability, but in this exercise, it may inform some context for some of FYVY’s offending. However, on more than one occasion in his evidence in answer to both counsel, FYVY stated, when he was taken through particular instances of his more serious offending, that he was not drinking at a particular time, or that he might have been ‘tipsy’ on that occasion. I do not conclude, therefore, that drunkenness has been ever-present in FYVY’s criminal conduct. But it clearly on the evidence was a major factor.
In terms of aggravating circumstances of FYVY’s offending, while I may accept Mr Mutton’s characterisation that much of it was opportunistic, in company with co-offenders, and that it is reasonable to conclude there was an element of ‘egging on’ from others, the Applicant also accosted innocent people going about their daily lives: commuting, shopping, walking down the street, without any provocation.
The period of offending
FYVY’s offending spans the period from 2004 to 2017 (TD, pp 132-136). He has appeared in Court each year from 2004 to 2017 with the exceptions only of 2014 and 2016. In some years, he appeared before the Courts several times. On some occasions, no conviction has been recorded, but charges have been found proven. The Courts have imposed a range of tools available to them, including suspended sentences, bonds, supervision orders, control orders and conditions on parole. It is fair to say, as judicial officers have said directly to the Applicant, steps taken by the Court system to direct FYVY away from further offending have not deterred him.
Risk of recidivism
The Tribunal found the report and evidence of Dr Zimmerman significantly helpful in assessing FYVY’s likelihood of re-offending. I also note Mr Barrington’s proper concession that the Respondent conceded that the range of support structures that FYVY needs are now in place, and his submission to me that they have been in place before, but have not been taken up.
I do not accept the second part of that submission of the Respondent. While there is evidence before me that FYVY has been offered, and has either broken off from, or has simply not engaged with, other measures put in place by the Courts and related authorities to improve his behaviour, the comprehensive nature of the supports being coordinated by Mrs JS has not been established to assist FYVY in the past. I note that this plan does not only involve her own role as a case manager, which Dr Zimmerman said was crucial, but also involves the provision of stable accommodation with Mr SM and his family, the offer of genuine employment by Mr DM, involvement with STARTTS (who have already personally assessed the Applicant) and Alcoholics Anonymous, and engagement with clinicians.
Dr Zimmerman stated in her report:
Services in the community have been available in the past and [FYVY’s] mother was supportive of him once she arrived in the country. However, the organisation of support by [Mrs JS] and the crucial role she can play in ensuring he stays linked in with services has never been present in the past. The combination of the structured support package now available to him in combination with his current readiness and motivation to change leads me to conclude that [FYVY’] currently has a good chance of rehabilitation.
(Emphasis in the original.)
I accept that Dr Zimmerman was careful to underline to the Tribunal in her oral evidence that her opinion of FYVY posing a ‘low to moderate’ risk of re-offending is contingent on these interventions.
CONCLUSION
The Tribunal is satisfied that FYVY has been convicted by final judgement of a particularly serious crime, within the terms of section 36(1C)(b) of the Act. The Tribunal further finds that, given (i) the length of time (several years) since his last offending (ii) his abstinence from alcohol, now for several years, which was a significant driver of his offending; and (iii) the evidence of the very comprehensive suite of support structures, both personal and organisational, now in place if he is released into the community, that I am not satisfied that there are reasonable grounds to consider that FYVY is presently a ‘danger to the community’ or, with this protective environment, will be a ‘danger to the community’ if granted a protection visa.
The Tribunal finds therefore that the requirements for making the permitted exception in the Applicant’s case in terms of granting him a protection visa are not satisfied. Consequently, I find that the correct and preferable decision is therefore to set aside the decision under review.
I am mindful that any risk, and therefore potential danger, would rise if FYVY spurned the detailed plan that has been mapped out for him, does not engage in the employment arranged and prosocial interactions, and resumes using alcohol. He will be aware by the process of this hearing that the protection visa is liable for cancellation should he re-offend.
DECISION
Under section 43(a)(c)(ii) of the AAT Act, the Tribunal –
(a)sets aside the reviewable decision of the delegate of the Respondent dated 21 November 2019 to refuse the Applicant’s Protection (Class XA, subclass 866) visa; and
(b)remits the matter with the direction that the Applicant does not come within the criterion stipulated in section 36(1C)(b) of the Migration Act 1958.
I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 27 May 2021
Dates of hearing:
25 and 26 November and 23 December 2020; and 4 February 2021
Counsel for the Applicant:
Mr Nick Mutton
Solicitors for the Applicant:
Refugee Legal
Advocate for the Respondent:
Mr Jonathan Barrington
Solicitors for the Respondent:
Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Remedies
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