GNZW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1801
•13 June 2024
GNZW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1801 (13 June 2024)
Division:GENERAL DIVISION
File Number: 2023/6339
Re:GNZW
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:13 June 2024
Place:Melbourne
The Tribunal, under section 43(1)(c) of the Administrative Appeals Tribunal Act 1975, sets aside the decision under review and remits the matter to the Respondent with a direction that s 36(1C) of the Migration Act 1958 does not apply in relation to the Applicant’s eligibility to be granted a protection visa.
.....................[SGN]...................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is stateless – previously held citizenship of Iraq – applicant held refugee visa – visa cancelled owing to offending – applicant applied for protection visa – protection visa refused – Tribunal affirmed refusal of protection visa – Federal Circuit Court remitted matter to Tribunal – applicant found to be owed protection – protection visa refused on basis of being danger to community – criminal history – health conditions – applicant released from detention in wake of High Court decision – whether applicant has breached curfew conditions – time in the community with no offending – decision under review set aside and matter remitted with direction
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Migration Act 1958 (Cth)Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014
Cases
NZYQ v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] HCA 37
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104
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 (done at Geneva 28 July 1951). Entry into force for Australia and generally, 22 April 1954. ATS (1954) 5
REASONS FOR DECISION
Senior Member D. J. Morris
13 June 2024
INTRODUCTORY
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.
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, s 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.)
Section 5 of the Act is the definitions clause where ‘serious Australian offence’ is defined 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 BACKGROUND
GNZW is a Faili Kurd. He is Shi’a Muslim. He was born in Iraq in 1975. His family was stripped of Iraqi citizenship and expelled from the country, to live in a camp in Iran. In 2001 GNZW left Iran on a false passport. He travelled to Indonesia where he resided for eight years. He married an Indonesian national, and they had two children together. In 2009 GNZW and his family were granted refugee visas and emigrated to Australia together. A third child of the marriage was born in Australia. In 2011 GNZW separated from his wife. They are now estranged.
GNZW has been before the Courts on two occasions in Australia, in 2012 and 2014. He has been convicted of a number of offences, the details of which are set out later in these reasons.
APPLICANT’S IMMIGRATION HISTORY
GNZW arrived in Australia in September 2009 as the holder of a Refugee (Class XB)(Subclass 200) visa.
In May 2015, the refugee visa was cancelled under s 501 of the Migration Act 1958 (‘the Act’). In November 2016, the then Assistant Minister decided not to revoke the cancellation of the refugee visa.
In 2017 the Respondent consented to the making of orders in the Federal Court of Australia which quashed the Assistant Minister’s decision. On remittal, the Assistant Minister again decided not to revoke the cancellation of the visa.
In November 2018, GNZW applied for a Protection (Class XA)(Subclass 866) visa. In May 2019, a delegate of the Minister refused the visa on the basis that the Applicant did not satisfy s 36(2)(a) of the Act.
In August 2019, a Member in the Migration and Refugee Division of this Tribunal affirmed the decision to refuse the protection visa. In May 2020, the then Federal Circuit Court of Australia quashed the decision of the Tribunal.
In August 2021, a Member in the Migration and Refugee Division of the Tribunal remitted the application for the protection visa to the Department of Home Affairs (‘the Department’) with a direction that GNZW satisfied s 36(2)(a) of the Act, in other words that he met the definition of a ‘refugee’ within the meaning of s 5H(1) of the Act.
In August 2023, a delegate of the Minister refused GNZW the protection visa on the basis that he did not satisfy s 36(1C) of the Act (set out earlier in these reasons).
On 4 August 2023, GNZW sought review of that decision. In his application, he claimed it was wrong in the following terms:
The decision is not the correct and preferable decision because I am not a danger to the Australian community. I believe the decision was made unfairly. I will provide more information as part of the review process.
In November 2023, as a result of the High Court of Australia judgment in NZYQ v Ministerfor Immigration, Citizenship, and Multicultural Affairs [2023] HCA 37 (‘NZYQ’), the Respondent decided to grant GNZW a Bridging (Removal Pending)(Subclass 070) visa, and released him from immigration detention, but under certain conditions as regards his freedom of movement. He has resided in the community since that time.
HEARING
A hybrid hearing was held on 14 and 15 February 2024 with the Applicant and Respondent appearing in person and the Tribunal appearing by video link. GNZW represented himself and made submissions. He was subject to cross-examination by Mr Adrian Downie, a Lawyer with The Australian Government Solicitor. The Tribunal was assisted by interpreters in the Arabic language.
The Tribunal admitted into evidence the exhibits in the annexures to these reasons. In addition, the Tribunal had regard for a Statement of Facts, Issues and Contentions of the Minister, dated 7 February 2024, and an Amended Limited Statement of Facts, Issues and Contentions of the Applicant, prepared by the Asylum Seeker Resource Centre and dated 13 February 2024.
Should the Tribunal consider the potential consequences if GNZW is repatriated?
It is established by the judgment of Flick, Jagot and Barker JJ in SZOQQ v Minister forImmigration and Citizenship [2012] FCAFC 40, at [27] that there is no requirement to undertake any ‘balancing’ of the consequences to an individual on being removed from Australia.
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.
It is relevant, because of the recent decision of the High Court in NZYQ, that in a case such as GNZW where there is no practical likelihood of him being repatriated, that the outcome in this case will in essence be whether he continues on the bridging visa he currently holds with stipulated restrictions attached to the conditions of that visa, with prospects of being granted a protection visa in the future, or if the Tribunal sets aside the exception in s 36(1C) of the Act, he would be granted a protection visa subsequent to this Tribunal’s direction.
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 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. This is not an exhaustive list. The general ‘list’ of considerations in WKCG has been commented on favourably by the Federal Court of Australia.
The Respondent drew the Tribunal’s attention to the Full Court decision in SLGS v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104 where Jackson J said (Rares and Snaden JJ agreeing):
To the extent that there are differences between the construction of s 36(1C)(b) of the Migration Act favoured by Rares J in DQM20 and the construction favoured by Thomas and Snaden JJ, it is the approach of the plurality that must be followed. In my view, their Honours held ‘danger,’ as applied to all the facts and circumstances of the case and which is not susceptible to more precise definition. It would be consistent with their Honours’ approach for the decision maker to consider whether the harm that will eventuate if the danger becomes reality is non-trivial and whether it would be harm of a physical or psychological kind. It would also be consistent with that approach to consider whether the risk that the harm will eventuate goes beyond that which is contemplated in ordinary personal interactions. Both the plurality and Rares J endorsed a concept of danger that combines an assessment of how probably harm is with an assessment of the severity or seriousness if the probability eventuates. As to the object of the danger, it is the Australian community conceived of as the community as a whole and/or any person or persons who are part of it.
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. For clarity, there was no submission before the Tribunal that GNZW is a danger to the security of the country, so that limb of the section is not relevant.
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 to be considered a ‘danger to the Australian community.’
Has GNZW 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.
GNZW was convicted in 2012 of the Victorian offence of Recklessly causing injury. Under s 18 of the Crimes Act 1958 (Vic), that offence carries a maximum penalty of five years’ imprisonment. In addition, the Applicant was convicted in 2014 of the Victorian offence of Trafficking in a drug of dependence. Under s 71AC of the Drugs,Poisons and Controlled Substances Act 1981 (Vic), that is an indictable offence, rendering a person liable to a maximum penalty of 15 years’ imprisonment. As each of these offences fulfils the requirements in s 5(iii) of the Act which defines what is a ‘particularly serious crime’, the Tribunal is satisfied to find this is applicable to GNZW. It was not contended otherwise by either the Applicant or the Respondent. It is valuable to note that the maximum possible penalty here is relevant, not the actual penalty imposed upon the Applicant.
Is the Applicant ‘a danger to the community’?
The second step of the process is whether the Applicant 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.
The seriousness and nature of the crimes and the sentences imposed
GNZW does not have a long history of offending. The National Police Certificate, which was before the Tribunal sets out that in May 2012 he appeared at the Magistrates’ Court of Victoria and was convicted of four offences: False imprisonment; Recklessly cause injury; Theft; and Contravene Family Violence Intervention Order (FIVO). For all of these offences a conviction was recorded, and a Community Corrections Order (CCO) was imposed for him to perform 60 hours of unpaid community work.
However, he was back before the Magistrates’ Court almost exactly two years later, in May 2014. On this occasion the following outcomes are recorded. GNZW was convicted of Making threat to kill (2 counts); and Contravene FIVO. For these two offences he was imprisoned for 12 months. He was also convicted of the offence of Trafficking in a drug of dependence. For this offence he was sentenced to prison for six months, to be served cumulatively. He was also found to have breached the CCO imposed in May 2012 and imprisoned for six months, to be served concurrently. He was further convicted of two counts of the offence of Drive whilst authorisation suspended, and imprisoned for three months, to be served cumulatively.
He was also convicted of Failing to answer bail (3 counts) and Resisting police, and sentenced to two months’ imprisonment of which one month was to be served concurrently. Finally, he was convicted of the offence of Dealing in property suspected to be the proceeds of crime, and fined $2,000 for that offence.
ORAL EVIDENCE OF APPLICANT
GNZW confirmed he was born in Iraq in 1975 and then lived in a refugee camp in Iran before moving to Malaysia. He lived in that country for two years, got married and came to Australia with his family. He said he had two children in Australia and a third once the family had arrived in Australia in 2009.
He told the Tribunal he separated from his wife in 2012 because of a breakdown in their relationship and agreed that his wife took out a FVIO naming him in 2012. In response to Mr Downie, he agreed he had breached the FVIO but said “the false imprisonment and reckless injury is not true. I was charged but did not accept them.”
He said he had an argument with his wife “because I drink and then I go home.”
GNZW agreed that he was convicted in 2012 of False imprisonment, Recklessly causing injury and breaching the FVIO and said “it is incorrect. The lawyer and the interpreter told me I have to accept things to avoid other charges.”
Mr Downie noted that the Applicant went to a friend’s house and got his friend to call his wife. He then took the phone and asked his wife for money and made a threat to kill. The Applicant responded, “When I am drunk, I say everything. She listed everything I said. I don’t remember threatening to kill her. She recorded whatever I said.”
Mr Downie asked GNZW whether he recalled being convicted for the Threat to kill offence and for breaching the FIVO. He responded, “This is the conviction of which I was convicted.” He agreed that he was later at Court and that a bench warrant had been issued for him to be arrested. Mr Downie referred to an incident involving Court staff. GNZW responded, “The judge knew I was sick and mentally ill. He asked someone to help me. I was very, very sick.”
The Respondent asked GNZW if he remembered the charge for possessing a trafficable quantity of heroin. He responded, “I told them it was not for sale; it was for me.”
GNZW told the Tribunal he was sentenced to a total of 20 months in prison, 10 months of which were to be served before he was eligible for parole. He said “the visa was cancelled so I remained in prison for more than 12 months. When I left the prison, parole was done.”
Mr Downie asked if there are existing Court orders preventing GNZW from having contact with his wife and children. The Applicant said, “The type of visa prevents me from having contact with my children. I haven’t made contact with them for ten years.”
In terms of his work history, GNZW said he worked in a market in Iran selling vegetables but had not worked in Australia because of health problems. He said that since he was released from detention at the end of 2023, he has said he “can work for three or four days a week – I want to work” but was currently on social welfare benefits.
Mr Downie asked the Applicant if he had spoken to anyone about the jobs he wants to do. He responded, “This is the problem. I don’t have someone to assist me. I am like someone who is lost. Ten years in detention. I don’t know how things are done outside.”
When asked where he would like to live if granted a protection visa, GNZW replied, “Melbourne or Brisbane, because there are farms in Brisbane. I have friends in Brisbane.”
In response to direct questions from the Tribunal, GNZW said he is in short-term accommodation in Melbourne and had to report daily to the Department. He said he wears an anklet with a GPS. He said, “I don’t have a plan because I don’t have someone to help me. I want to do anger management, but I don’t have someone who speaks my language.”
GNZW said he had some help from a community organisation who make appointments for him but “sometimes I can’t find the place, so I come back.” He said he had seen a general practitioner in relation to his diabetes condition and for a back problem, and was seeking a psychologist every two weeks when in immigration detention but “I haven’t seen anyone; I need to see someone.”
GNZW said he had a Buvidal (i.e. buprenorphine) injection every month in detention and had continued that since he was released into the community in November 2023, and that the dosage would begin to be reduced so that he no longer needs to take it. He says he sees a doctor in a Melbourne suburb who is overseeing his treatment.
GNZW said he had seen his general practitioner and had asked for a mental health referral. He said he had gone back to the doctor he and his family used to see, because the doctor speaks Arabic and Farsi.
In terms of his historical drug use, GNZW said he smoked marijuana when living in Indonesia. He said when he moved to Australia, he became friends with people who gave him ‘ice.’ He said he also used cannabis and opium. He agreed with Mr Downie that his drug use was the main driver of the breakdown in his domestic relationship.
GNZW agreed that he used illicit substances while in immigration detention “because it was there,” and that he had tested positive in detention for methamphetamine and cannabis. He said he was on methadone until around September 2021.
GNZW agreed that he was granted a bridging visa in November 2023 and released from detention. He said he is subject to a curfew from 10 pm to 6 am and has to telephone the Department every day, or if he starts any employment.
When asked if he had breached the daily reporting obligation, GNZW said, “A few times, because I fell asleep, But I didn’t go anywhere. The GPS can confirm that I didn’t leave my room.”
He said when he misses a daily reporting call, he will call the Department the following day. GNZW said he had not taken any illicit substances during the last three months he has been in the community, but did take prescribed medication for anxiety, which are recorded in his medical file.
The Applicant was questioned about breaching the curfew requirements. He said, “If you are saying I went outside the hotel, that’s true. I went to the entrance of the hotel. ABF said I can’t. Once I was hungry and didn’t have food. The ABF told me not to do it again and to make sure I have food. The shop was very close. I went to the shop and came back, and the ABF gave me a call straight away. They said we know how far you went, please don’t do it again. I was very hungry.”
Mr Downie asked GNZW about a report stating he had left his accommodation on four occasions in breach of the curfew. He responded, “I didn’t leave. I would go down to have a smoke, and go back to my room. The GPS and cameras would show. It was in the early hours when I go down to have a smoke. I didn’t go far. I can’t smoke near the door of the hotel. There is a chair. If I went more than five metres, you can charge me.”
Mr Downie said the Respondent accepted that on every occasion where GNZW had failed to report, he did report the following day.
The Applicant was asked about threats he had made to kill other detainees or officers of the Immigration Detention Centre. He responded, “They are free to write whatever they like. If an officer hates you, he will write anything down about you, if you don’t say ‘please’ or ‘thank you.”
GNZW was asked about an incident where he spoke obscenities to a detention officer. He responded, “Maybe I was angry, but I didn’t touch an officer. I never said this. An officer punched me and broke my teeth. In another incident, I was about to die, and nothing happened to that officer. We went to Court. I have the reports. The guard was dismissed and taken back to New Zealand.”
Mr Downie asked GNZW about another incident where he was abusive to a medical escort and made a punching gesture. He said “they will write anything. It didn’t happen.”
GNZW was asked about an incident where he was under escort and verbally abused an officer. He responded, “Sometimes officers will put you in handcuffs. Sometimes officers treat you as if you are not a human being.”
Mr Downie referred to an incident where it was stated that GNZW punched an officer. He denied this, and said “if I punched, why didn’t they charge me?”
GNZW said that he spent more than nine years in detention and was never taken to prison, and had now spent three months in the community and had “caused no problems to anyone.”
GNZW was asked about a report about the Applicant wanting to see his wife who has moved to Adelaide. He said he spoke to a security guard because he wanted to tell someone about what was going on in his life. When pressed by Mr Downie, he said, “It is not that I don’t remember saying it, I did not say it. I do not want my life to be based on such words. Not even a single word is true. Who wrote this report?”
Mr Downie took GNZW to a report by caseworkers who were helping him in the community in January 2023 when he was in the community for a short period. They recorded that he sent abusive and aggressive text messages. He responded, “I got angry. At the time, I didn’t have money or food for four days. I got angry.”
Mr Downie took the Applicant to a conversation with a caseworker where it was recorded that he said, ‘you know I’ve shot people before; I am going to shoot [redacted name of organisation], I’m going to shoot immigration,’ and asked if he did say that. GNZW responded, “Who did I shoot before? It’s a lie. It’s as if someone wants to get you into trouble. I’ve been out for three months now, and don’t have any problem.”
The Applicant was asked why he thought the caseworker ‘hated’ him. He responded, “I came out of detention. They assigned a caseworker to me. I got angry. Said something to him, and that’s it. Did I harm another person? Did I harm an animal? I want to change my life. I want to forget the past.”
Mr Downie noted that one caseworker wrote that he had never encountered such a challenging client as GNZW. The Applicant responded, “I had spent nine years in detention – what do you expect to explain to someone who is out? I spent that time with criminals and people who are full of problems. My brain is not like someone in the community – they should be lenient to me.”
Mr Downie asked GNZW if he accepted that he sent offensive text messages to a caseworker. He responded, “It didn’t happen. I sent him a message. I’m not saying I didn’t do it. I didn’t make any threats. I got angry. His behaviour towards me made me get angry. He was meant to be my friend. I am a human being, not an animal. He wasn’t paying attention to me. He was leaving me alone. He showed it to the police. Then my visa was cancelled because of the message. Or because of a change in the law. I’m not sure.”
Mr Downie asked GNZW if he thought of the impact on the caseworker of receiving such a message. The Applicant responded, “It wasn’t a threat – it was that I’m a human being. That’s all.”
In response to direct questions from the Tribunal about anger management courses, GNZW said, “There are a number of programmes I want to do. I’m trying to apply to see a psychiatrist to teach me how to behave but I don’t have someone who would help me get in touch.”
The Tribunal asked the Applicant if he thought he had a problem with anger management. He responded, “I do not have an issue with this, but I think I would benefit from this. I want to learn from this.”
The Applicant said he saw his wife in October 2013 when she visited him. He was aware she now resides in South Australia, but not precisely where in that State. He said, “If the law allows me to see my children, I would like to see them. If the law doesn’t allow me, so be it.”
When asked if he has divorced, GNZW responded, “There isn’t any divorce. I have never thought about going to South Australia. I think of Brisbane or Melbourne. I want to work.”
CLOSING SUBMISSIONS
The Respondent in closing submissions noted that, because of the decision in NZYQ, the outcome of this application will determine whether GNZW remains on a bridging visa subject to conditions or in due course is granted a protection visa and able to live freely in the community.
The Respondent accepted that there has been no conviction for close to ten years but that other factors demonstrate that past offending might be repeated. Mr Downie noted that the Applicant has made repeated threats to kill IDC staff and other detainees and made threats towards his wife as recently as 2021. He said the Minister accepts that no charges have been laid relating to these threats, but it does present some concern that GNZW might present to some members of the community.
Mr Downie noted that GNZW denied making any threats at all. He said that the Applicant is entitled to deny conduct where there has been no conviction, but that it is difficult to accept that no adverse conduct has been engaged in, given the number of reports. He said that GNZW does not seem to have demonstrated any insight into the effect his aggressive text messages to caseworkers in 2023, for example, might have on the recipient.
The Respondent drew the Tribunal’s attention to a report of Dr Kym Jenkins (TD, p 1308) dated 27 May 2021. Dr Jenkins is a consultant psychiatrist who examined GNZW in three telephone sessions in May 2021 at the request of the Asylum Seeker Resource Centre, and with an Arabic interpreter.
Dr Jenkins notes GNZW has a history of post-traumatic stress disorder and a significant history of anxiety and depression, together with a long history of substance abuse. Dr Jenkins relevantly recorded:
Depending on the substance, a relapse into substances use places him at risk of further episodes of aggressive or inappropriate behaviour.
…
Wherever he is in future [GNZW] will remain a very vulnerable individual unless he has ongoing and integrated treatment for physical health, mental health and substance abuse…
Dr Jenkins records the Applicant having a
complex interplay of depression, post traumatic stress disorder, anxiety, substance abuse, cirrhosis, hepatitis C, raised blood pressure, diabetes, splenomegaly, low back pain and epilepsy.
Mr Downie noted the Applicant’s evidence that, while he had seen general practitioners, he had not seen a psychiatrist or psychologist, nor undertaken any anger management counselling. He said that the Respondent would accept that GNZW is treatment-seeking and desires help, but also that there is no evidence at this stage of a treatment plan. Without a protective plan, the Applicant, he submitted, was at risk of repeating similar behaviour in the community.
Mr Downie submitted that it is conceivable that ‘more than trivial’ harm to members of the community could be caused, and that of most concern would be potential harm towards the Applicant’s estranged wife.
In regard to the reports of ‘breaches’ of the curfew, the Tribunal asked the Respondent for advice on the curtilage of the inclusion zone: was it limited to the Applicant’s hotel room, or did it include the foyer and other parts of the hotel? After an adjournment, Mr Downie said he had not been able to obtain instructions on this point and said that there was nothing which would place doubt on GNZW’s evidence about breaches of the curfew being confined to having a cigarette close to the hotel entrance, and on one occasion going to a local shop and being admonished by ABF officers for that. The Respondent said that it no longer sought to rely on any breaches of curfew by the Applicant being considered by the Tribunal.
In summary, Mr Downie said that GNZW had a serious but confined criminal history; that in 2021 he was recorded as making a threat against his wife, and that there was evidence of poor conduct in detention, accepting the Applicant has mental health conditions but had been non-compliant with some medication and had not properly addressed his substance abuse.
The Applicant, in his closing submissions, confirmed that he was currently seeing two medical practitioners, one for his general health and one for the monthly Buvidal injections. GNZW said that he had made mistakes, but did not regard himself as a criminal. He said he had been in the community for four months without any problem, which proves he posed no risk. He said, “I can’t live my life with the lock around my leg. I can’t work in the security sector because of the anklet.” When asked if he wanted to say anything about the threats made to his wife, the Applicant said, “What is the proof? Do I know where she is? I don’t want to know where she is. I just want to be treated fairly and in a just way.”
The Tribunal accepts that GNZW has a number of challenges to both his physical and mental health, outlined above particularly in the summary by Dr Jenkins. It is very clear to the Tribunal in reading the reports from immigration detention that GNZW has a particular anger management problem which has manifested itself, on occasion, in aggressive threats to immigration officers. I do not accept the Applicant’s assertions that the reports of some of his conduct in detention can be explained away by fabrications by officers who may not like him. Because of the preponderance of the reports, I am satisfied that his conduct in detention has fallen well short of good behaviour on occasions, although my sense is that his verbal outbursts stem from a quick temper, rather than a particularly violent streak. I am also satisfied that he sent aggressive and threatening text messages to caseworkers when he was briefly in the community in January 2023, to the extent that the organisation no longer wanted to deal with him.
While I accept Mr Downie’s submission that, if the Applicant had a specific person who might be liable for harm, it might be his estranged wife, I am also satisfied that GNZW does not know where she now lives, nor where his children are. He said he would be happy to make contact with his children, but had no interest in reconnecting with his wife. He said he has no plans to go to South Australia, where she apparently now resides. He has not seen her or the children for more than a decade.
The Applicant’s offending is undoubtedly serious, but it can be isolated into a period of around two years, from 2012 to 2014. There is ample evidence of disciplinary misconduct in detention subsequent to that period, but no record of any other charges, let alone convictions, as the Respondent as a model litigant rightly conceded.
In terms of a risk of recidivism, the Tribunal considers there is some risk. It will depend, as Dr Jenkins wrote, whether the Applicant relapses into using illicit drugs. Balancing that, at the time of the hearing in February 2024, GNZW had been at liberty for just short of three months, without, as he rightly submitted, any offending. He has now, at the time of making this decision, been in the community for around seven months, and there is still no evidence of any offending.
The Tribunal accepts that the stringent conditions the Government imposed upon GNZW when he was granted a bridging visa have had a significantly protective impact upon any likely antisocial or criminal conduct, especially the night curfew and the monitored anklet. But he has been free to interact in the community and there is no evidence before the Tribunal of any violence or antisocial misconduct.
CONCLUSION
The Tribunal is satisfied that the Applicant has been convicted by final judgment of a particularly serious crime, within the terms of s 36(1C)(b) of the Act. The Tribunal has carefully considered whether the Applicant is (presently) a danger to the community. He was initially sentenced in an Australian court to ten months in prison, with a parole period of a further ten months. He has now been in detention for around ten years, with a brief period at liberty at the beginning of 2023. Since November 2023 he has been in the Australian community, under strict conditions connected with his bridging visa.
I agree with Mr Downie’s submission that GNZW is treatment-seeking. He seems to me to genuinely want support in regard to his future behaviour, even if there were aspects of his evidence which challenged whether he is fully understanding of the drivers which might precipitate antisocial or offending conduct. In one answer in response to a direct question from the Tribunal about whether he had a problem with anger management, he denied it, but then immediately went on to say he thought he would benefit from counselling. He clearly benefitted from regular psychological and psychiatric visits while in detention. He said he is seeking to continue that in the community.
It is impossible to see into the future, but the Tribunal has decided the period that GNZW has been in the community is objective proof that he does not (at the time of this decision) present a ‘danger’ to the community in the sense set out by Jackson J in SLGS.
Having made this finding, the consequence is that this matter should be remitted to the Respondent with a direction that s 36(1C) of the Act does not apply, so the exception carved out for GNZW as a person who whom Australia accepts it owes protection is not enlivened.
DECISION
The Tribunal, under section 43(1)(c) of the Administrative Appeals Tribunal Act 1975, sets aside the decision under review and remits the matter to the Respondent with a direction that s 36(1C) of the Migration Act 1958 does not apply in relation to the Applicant’s eligibility to be granted a protection visa.
I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
.........................[SGN]...............................................
Associate
Dated: 13 June 2024
Date(s) of hearing: 14 and 15 February 2024 Applicant: Self-Represented Counsel for the Respondent: Mr Adrian Downie Solicitors for the Respondent: The Australian Government Solicitor ANNEXURE
SCHEDULE OF EXHIBITS
Volume of T documents lodged on 27 October 2023 Exhibit R1
Supplementary T documents lodged on 7 February 2024 Exhibit R2
Home Affairs – Change of contact form, 23 November 2023 Exhibit R3
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