GYNQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 443
•15 March 2022
GYNQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 443 (15 March 2022)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2021/2322 GENERAL DIVISION ) Re: GYNQ
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDIRECTION
TRIBUNAL: Senior Member Theodore Tavoularis
DATE OF CORRIGENDUM: 12 April 2022
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision dated 15 March 2022 as follows:
1.Where the Decision (on page 1) and the Reasons (at [109] on page 44) reads:
‘s 35(1A) of the Act.’
The Decision and Reasons should now read:
‘s 36(1A) of the Act.’
.................................[sgd]................................
Senior Member Theodore Tavoularis
Division:GENERAL DIVISION
File Number: 2021/2322
Re:GYNQ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:15 March 2022
Place:Brisbane
The Tribunal affirms the reviewable decision dated 8 April 2021 and finds that:
(1)Having been convicted of a particularly serious crime, the Applicant is a danger to the Australian community within the meaning of ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act; and
(2)The Applicant is not eligible for a Protection visa pursuant to s 35(1A) of the Act.
............................[SGD]...........................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant engages s 36(2C)(b) of the Migration Act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)CASES
DOB18 and Minister for Home Affairs (2019) 269 FCR 636
LKQD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
SHXZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1992
SZOQQ and Minister for Immigration and Border Protection (2013) 251 CLR 577
SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174WKCG and Minister for Immigration and Citizenship (2001) 110 ALD 434
DECISION
CATCHWORDS
LEGISLATION
CASES
BACKGROUND
Procedural history
The present application
ISSUE
SUB-ISSUE 1: HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGMENT OF A PARTICULARLY SERIOUS CRIME?
SUB-ISSUE 2: WHETHER THE APPLICANT IS A DANGER TO THE AUSTRALIAN COMMUNITY
The seriousness and nature of the crimes committed
The length of the sentence(s) imposed
Any mitigating or aggravating circumstances
The criminal record in totality – including the extent and nature of any prior convictions and the period over which they took place
The risk of re-offending and recidivism and likelihood of relapsing into crime
Findings about recidivist risk
Prospects of rehabilitation
CONCLUSION
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
15 March 2022
BACKGROUND
GYNQ (the “Applicant”) seeks review of a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or the “Respondent”) on 8 April 2021,[1] to refuse the Applicant a Protection (Class XA) (subclass 866) visa (the “Protection visa”) pursuant to s 65 of the Migration Act 1958 (Cth) (“the Act”).[2] The basis of the delegate’s refusal was that, having been convicted by a final judgment of a particularly serious crime, the Applicant was a danger to the Australian community. The delegate therefore found that the Applicant failed to meet the necessary criterion contained in s 36(1C)(b) of the Act necessary for the grant of a protection visa. For substantially the same reasons, the delegate found the Applicant is a person who engages s 36(2C)(b)(ii) of the Act.
[1]T2, p 43.
[2]T2, p 14-47 (The complete decision of the delegate, together with relevant annexures).
Procedural history
The Applicant was born in Afghanistan on 14 September 1996.[3] On the material before the Tribunal, it appears he is a citizen of that country.[4] He arrived in Australia on 13 October 2010 as the holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa (“GSH visa”).[5] This GSH visa was the subject of a mandatory cancellation decision pursuant to s 501(3A) of the Act. The mandatory cancellation decision (“GSH visa cancellation”) was made on 8 August 2019.[6] The mandatory cancellation was based on a finding by the Respondent that the Applicant did not pass the character test defined in s 501(6)(a) of the Act (when read in conjunction with s 501(7)(c)) due to (1) him receiving a sentence of imprisonment of more than 12 months; and (2) him serving a full-time term of imprisonment. On 2 June 2020, the Respondent determined that the Applicant’s representations to revoke the GSH visa mandatory cancellation decision were not made within the prescribed timeframe.[7] On that basis, the Minister did not proceed to make any decision about revoking the GSH visa mandatory cancellation decision.
The present application
[3]A1, p 2.
[4]Ibid.
[5]T2, p 14.
[6]T2, p 15.
[7]ST7, 91.
On 24 October 2019, the Applicant lodged his application for the Protection visa.[8] On 29 June 2020, the Respondent sent a request to the Applicant’s then-representative requesting certain further information including, but not limited to, his offending, rehabilitation, and future plans.[9] On 13 July 2020, the Applicant’s then-representative provided responsive written submissions to this request.[10] On 15 February 2021, the Respondent, inter alia, invited the Applicant to make submissions about the issue of whether or not he represented a danger to the Australian community based upon certain criteria contained in that communication.[11]
[8]T2, p 15.
[9]T24, p 427-431.
[10]T25, p 439-445.
[11]T28, p 461-466.
As mentioned earlier, the decision under review comprises the delegate’s decision made on 8 April 2021 refusing the Protection visa. On 13 April 2021, the Applicant applied to this Tribunal for review of the delegate’s refusal decision. Section 500(1)(c) of the Act confers jurisdiction on this Tribunal to review a decision to refuse a Protection visa where that decision is made under s 65 of the Act, if the refusal was grounded on, inter alia, s 36(1C)(b) or s 36(2C)(b)(ii) of the Act.
The instant hearing proceeded before me on 29 and 30 September 2021 and 21 October 2021. The Tribunal received oral evidence from the Applicant who represented himself. He did not call any other witnesses. The Respondent did not call witnesses. Although self-represented at the hearing, it should be noted the Applicant had been legally represented until a time relatively close to the hearing. Thus, the Applicant’s position is not one devoid of any documentary support. He has provided a statutory declaration made on 8 March 2021.[12] The Applicant’s prior representative also drafted and filed a Statement of Facts, Issues and Contentions (“SFIC”). That document is dated 16 August 2021.[13]
[12]A2.
[13]A1.
The totality of the written material before the Tribunal for this hearing was itemised into an Exhibit List, a true and correct copy (anonymised) of which is attached hereto and marked “Annexure A”. In the circumstances of the extant finding that the Applicant is owed protection obligations, this Tribunal was minded to make a confidentiality order[14] to protect the identity of the Applicant.
[14]Pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
ISSUE
The legislative pathway for this Applicant to be eligible for the grant of the Protection visa can be stated thus:
·Section 36(1A)(a): For the grant of a Protection visa, the Applicant must satisfy the following criteria:
(a)pursuant to sub-section (1B) that he has not been assessed by the Australian Security Intelligence Organisation as a direct or indirect risk to Australia’s security. There is no suggestion or assessment of the Applicant representing any such risk;
(b)pursuant to sub-section (1C) that he is not a person whom the Respondent Minister considers, on reasonable grounds:
· pursuant to s 36(1C)(a) is a danger to Australia’s security. There is no contention before the Tribunal that the Applicant represents any such threat; or
· pursuant to s 36(1C)(b), having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.
AND
·Section 36(1A)(b): For the grant of a Protection visa, the Applicant must satisfy one of the criteria in section 36(2). For present purposes, the material contains a Protection Visa Decision Record dated 8 April 2021 wherein a finding was made that the Applicant satisfies the criterion contained in section 36(2)(aa).[15] Specifically, it was found that the Applicant was a person in respect of whom Australia has protection obligations because: “there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”[16]
·Section 36(2C) provides that the Applicant is not taken to satisfy the complementary criterion assessment contained in section 36(2)(aa) if, inter alia, pursuant to section 36(2C)(b), the Minister considers on reasonable grounds that:
(i)the Applicant is a danger to Australia’s security; or
(ii)having been convicted by a final judgement of a particularly serious crime, the Applicant is a danger to the Australian community.
[15]T2, p 28.
[16]T2, p 27.
It will be noted that the two conditioning criteria in section 36(2C)(b) are substantially similar to those contained in section 36(1C). The only difference is that the second conditioning criterion in section 36(2C)(b)(ii) contains the words “…(including a crime that consists of the commission of a serious Australian offence or serious foreign offence)…”. There is no suggestion the Applicant has committed a serious foreign offence.
Therefore: (1) the same reply (and finding) I made for section 36(1C)(a) can be made for section 36(2C)(b)(i); and (2) the only residual issue for determination by this Tribunal is that contained in ss 36(1C)(b) and 36(2C)(b)(ii), namely whether the Applicant, having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.
In Australia, it is well-settled that there are two separate sub-questions raised by s 36(1C)(b).[17] First, has the Applicant been convicted by a final judgment of a particularly serious crime? Second, if the first question is answered in the affirmative, does the Applicant represent a danger to the Australian community?
[17]See SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174 (‘SZOQQ’) [52] (Jagot and Barker JJ, Flick J agreeing at [28]) (set aside on different grounds: SZOQQ and Minister for Immigration and Border Protection (2013) 251 CLR 577); DOB18 and Minister for Home Affairs (2019) 269 FCR 636 (‘DOB18’) [49] (Logan J); WKCG and Minister for Immigration and Citizenship (2001) 110 ALD 434 (‘WKCG’) [29] (Deputy President Tamberlin QC).
The first question is interpreted as, essentially, a jurisdictional fact. If there is one serious Australian offence, then the second question – whether the Applicant is a danger to the Australian community – arises for consideration.
I will consider each question in turn.
SUB-ISSUE 1: HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGMENT OF A PARTICULARLY SERIOUS CRIME?
For s 36(1C) of the Act, s 5M of the Act says, “particularly serious crime” includes both “serious Australian offence” and “serious foreign offence”. Section 36(2C) actually includes a reference to “serious Australian offence” and “serious foreign offence”.
As mentioned, there is no contention before the Tribunal that the Applicant has committed an offence overseas, so the meaning of “serious foreign offence” is not relevant to the instant facts.
The term “serious Australian offence” is defined in s 5(1) of the Act as follows:
“serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.”[18]
[18]Act, s 5 (definition of “serious Australian offence”).
There is already acknowledgement by the Applicant in his SFIC that on 30 July 2014 he was sentenced by the Parramatta District Court for committing the offence of “Robbery while armed with dangerous weapon”. He was sentenced to a head custodial term of 16 months’ imprisonment. Relevantly, for present purposes, this offence carries a maximum penalty of 25 years imprisonment.[19] It should be repeated that the Applicant was legally represented until a time relatively proximate to the hearing before me. Those prior legal representatives caused the abovementioned SFIC to be filed on behalf of the Applicant.
[19]Crimes Act 1900 (NSW) s 97.
At paragraph 11 of that SFIC, issue is taken by the Applicant as to whether the Applicant’s abovementioned conviction falls within the definition of “a serious Australian offence” as defined in s 5(1) of the Act. The gist of the contention is that the relevant sentencing remarks contain no reference to violence forming part of the Applicant’s offending conduct. It is further contended that, given the absence of the element of violence, the Applicant “…having not used any physical force during the commission of [the relevant offence], cannot be taken to have committed the offence involving violence against a person for the purpose of section 5(1)(a) of the Act”.[20]
[20]A1, p 4, para [11].
This contention should be rejected. While the factual matrix of the offending did not involve the Applicant personally possessing or controlling the dangerous weapon to use actual violence (or threaten violence) towards the victim, there can be no cavilling with the reality that the Applicant was charged and convicted of this offence in the course of him being a knowing participant with another co-offender. The agreed statement of facts records that the co-offender “…produced an imitation pistol from his right front hooded jumper pocket with his right hand and pointed it towards the victim…”.[21] That agreed statement of facts also records that “… [the Applicant] was aware that the co-offender was in possession of the imitation pistol when they entered the store.”.[22]
[21]R2, SM3, p 196.
[22]Ibid.
Of further relevance is the reality that the Applicant was obviously a willing participant in this join criminal enterprise. The agreed statement of facts records that after the co-offender had forced the victim to produce the draw from the till containing money and to place it on the countertop, “… [the Applicant] who until then was present nearby looking on, grabbed the till drawer and ran from the location through the front doors.”[23] It is thus safe to find that the factual circumstances giving rise to the Applicant’s unlawful conduct resulting in his abovementioned conviction on 30 July 2014 was an integral component of violence against the victim which, in this case, involved the making of threats and intimidation to that victim.
[23]Ibid.
As best as I understood the Applicant’s contention, this type of psychological intimidation and coercion threatened by way of physical harm, does not reach the level of an offence involving “violence against a person” pursuant to s 5(1)(a)(i) of the Act. There is authority for the proposition that the commission of conduct involving robbery in the company of another safely meets the definition of a “particularly serious crime” pursuant to s 5M of the Act. In SHXZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1992 (“SHXZ”), Senior Member Kirk of this Tribunal found that the commission of that Applicant’s conviction for “robbery in company” met the definitional requirements of a “particularly serious crime” for the purposes of s 5M of the Act.
In SHXZ, the Applicant was with two other individuals at the time of the relevant offence. Those two other individuals confronted the victim and asked him for a cigarette. Upon failing to produce a cigarette, those two men “proceeded to slap him [i.e. the victim] and steal his mobile phone.”[24] Later in her decision, Senior Member Kirk found that the Applicant’s conviction for “robbery in company” did constitute a “particularly serious crime” (pursuant to s 5M of the Act) as well as a “serious Australian offence” pursuant to s 5M(a) of the Act and s 5(1) of the Act. The notable point about SHXZ for present purposes is that the Applicant in that case had not perpetrated actual physical violence upon the victim.
[24]See paragraph 19 of SHXZ.
I am therefore satisfied that the Applicant has been convicted by a final judgement[25] of a “particularly serious crime”[26] and that such “particularly serious crime” has its basis in the Applicant’s commission of a “serious Australian offence”.[27] This is because the Applicant’s conviction for “Robbery while armed with dangerous weapon” involves violence against a person[28] and that offence is punishable by imprisonment carrying a maximum term of not less than three years.[29] In turn, it can also be safely found that the mirror provisions appearing at ss 36(1C)(b) and 36(2C)(b)(ii) have been satisfied to the extent that the Applicant has been convicted by a final judgement of a “particularly serious crime”.
[25]Represented by his conviction at the Parramatta District Court on 30 July 2014 for the offence of “Robbery while armed with dangerous weapon”.
[26]Pursuant to s 5M of the Act.
[27]Pursuant to s 5M(a) of the Act.
[28]Pursuant to s 5(1)(a)(i) of the Act.
[29]Pursuant to s 5(1)(b)(iii) of the Act.
I will now turn to the second question contained in ss 36(1C)(b) and 36(2C)(b)(ii).
SUB-ISSUE 2: WHETHER THE APPLICANT IS A DANGER TO THE AUSTRALIAN COMMUNITY
The only remaining question I am required to consider is whether the Applicant is a danger to the Australian community. As the Full Court of Australia explained in SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174, s 36(1C) of the Act does not allow me to engage in a “balancing exercise”. I cannot weigh the consequences for an applicant of, for example, refoulement, against whatever danger an applicant might pose:
“[…] we see the language of Art 33(2), construed in the context of the Refugees Convention as a whole, as intractable. The ordinary meaning of Art 33(2) (subject to one matter) is clear. The benefit of the duty against refoulement in Art 33(1) cannot be claimed by a refugee if the circumstances specified in Art 33(2) are present. The structure and text of the provisions do not permit any balancing exercise.”[30]
[30]SZOQQ [49] (Jagot and Barker JJ), [27] (Flick J, agreeing).
The definitive guide for a decision-maker in determining whether a person constitutes a danger to the community of Australia is to be found in the decision of a past Deputy President of this Tribunal[31] in WKCG v Minister for Immigration and Citizenship [2009] AATA 512 (“WKCG”). In that case, Deputy President Tamberlin established a multi-component test for assessing whether a person constitutes a danger to the Australian community. The components of that test comprise a decision-maker having regard to:
(1)the seriousness and nature of the crimes committed;
(2)the length of the sentence(s) imposed;
(3)any mitigating or aggravating circumstances;
(4)the criminal record in totality – including the extent and nature of any prior convictions and the period over which they took place;
(5)the risk of re-offending and recidivism;
(6)the likelihood of relapsing into crime; and
(7)any prospects of rehabilitation.[32]
[31]Deputy President Tamberlin QC.
[32]See WKCG para [26].
In WKCG, Deputy President Tamberlin QC explained that whether a person is a danger to the Australian community is a question of fact and degree.[33] The learned Deputy President Tamberlin QC also explained that the task for the Tribunal in answering the second question in s 36(1C)(b) as follows:
“The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.”
[33]See WKCG para [25].
In DOB18 v Minister for Home Affairs [2019] FCAFC 63, Logan J explained that for s 36(1C)(b) to be made out, the Tribunal has to be satisfied that the Applicant “is and will into the indefinite future be a danger, not that the person once was a danger.”[34] Logan J further explained that danger “means present and serious risk.”[35]
[34]DOB18, 655 [75].
[35]DOB18, 657 [83].
Beyond the factors identified in WKCG, I must also have regard to all substantial, clearly articulated and relevant contentions propounded by the parties.[36]
[36]See generally LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17 25[31]–27[40] and the cases cited in those paragraphs.
I will now consider each of the factors in WKCG in turn.
The seriousness and nature of the crimes committed
In WKCG, the learned Deputy President explained that the words “having been convicted” in s 36(1C)(b) of the Act do not limit any enquiry into, and assessment of, the danger represented by a person to only those offences falling within the definitional ambit of a “particularly serious crime”.[37] In particular, Deputy President Tamberlin said a decision-maker embarking on this assessment must “look at the person’s conduct in light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of convictions”.[38]
[37]WKCG para [29].
[38]Ibid.
This Applicant has, across an approximate five-year period, had the following sentences imposed upon him:[39]
·30 July 2014 – Robbery while armed with dangerous weapon – 16 months’ imprisonment;
·29 August 2017 – Possess prohibited drug – fined $500 and a good behaviour bond for a period of 12 months was imposed in lieu of actual custodial time[40];
·29 August 2017 – Possess prohibited drug – fined $800 and a good behaviour bond for a period of 12 months was imposed in lieu of actual custodial time[41];
·30 July 2019 – Possess prohibited drug – three months’ imprisonment; and
·9 September 2019 – Common assault – three months’ imprisonment.
[39]T26, pp 446-454.
[40]This sentence was undisturbed on appeal to the Parramatta District Court on 16 October 2017.
[41]This sentence was undisturbed on appeal to the Parramatta District Court on 16 October 2017.
First, with reference to the Applicant’s conviction for “Robbery while armed with dangerous weapon”, it should be noted that this conduct involved the Applicant acting in concert with a co-offender for the specific purpose of stealing money from a local petrol service station in suburban Sydney. The Applicant’s co-offender had an imitation pistol on his person. The co-offender approached the counter behind which the store attendant (victim) was located. The co-offender then menacingly brandished the imitation pistol towards the victim while at the same time shouting the words “Open the till, open the till quickly. Give me the money”.[42] In shouting these words, the co-offender was pointing the imitation pistol directly at the victim.
[42]R2, SM3, p 196.
This threatening conduct induced such fear in the victim such as to cause him to comply with the demands of the co-offender. The victim produced the drawer from the till containing the store’s takings and placed it on the countertop between himself and the co-offender. At this juncture, the Applicant became actively involved in the criminal enterprise by grabbing the till drawer from the countertop and exiting the store via its front doors. In formulating the sentence imposed on the Applicant, the learned sentencing Judge[43]:
·found that the Applicant knew his co-offender was in possession of the imitation pistol when they both entered the store;
·while not a protagonist, the Applicant’s conduct in taking possession of the till drawer off the countertop and carrying it outside constituted a “somewhat active role” in the overall criminal enterprise;
·was of the view that the co-offender would have proceeded with commission of the offence regardless of the Applicant being present;
·was satisfied that the Applicant’s conduct in the criminal enterprise represented “an isolated aberration” in terms of his overall conduct to that point of his life; and
·was nevertheless satisfied that the totality of the conduct represented “serious” offending.[44]
[43]His Honour, Judge Sides, District Court of New South Wales.
[44]T5, pp 283-292.
For reasons I have earlier outlined, I am of the view that the totality of this criminal conduct, including the Applicant’s role within it, should still be considered to be violent. The Applicant knew his co-offender was carrying an imitation pistol. He maintained a watching brief while the co-offender menacingly brandished the pistol at the victim and once the co-offender had induced the victim to hand over the stores taking contained in the till drawer, the Applicant promptly took his queue to remove that till drawer from the countertop and to exit the store. There is no suggestion in the material that the Applicant was taken by surprise by the conduct of his co-offender nor any other suggestion denying an outcome involving anything other than relieving the store of its takings contained in the till drawer.
Therefore, while there is no suggestion or finding that the Applicant was the primary offender in this criminal enterprise, it can safely be found that his conduct was committed in circumstances of wanton, deliberate and intentional violence upon an identified victim for unlawful material gain. I find this conduct to be serious in nature.
Second, and redolent of much of the Applicant’s unlawful conduct, was his conviction for common assault committed in March 2017. I say “redolent” because this offending was committed in company with another co-offender. There is a statement of agreed facts, duly signed by the Applicant and his then legal representative on 9 September 2019.[45] The Applicant took it upon himself to harass a group of females during a train ride. His behaviour was sought to be non-violently curbed by two people who, in turn, became victims of his offending. Those victims were then aged 15 and 20 years respectively. As mentioned, this offending was committed in company with a co-offender, “Mr P”.
[45]R2, SM1, pages 1-2.
After seemingly taking offence at the victims’ attempt to curb the Applicant’s conduct, the relevant NSW Police Facts Sheet records that the Applicant induced both victims into a local park. The Applicant then proceeded to kick the 15-year-old victim on the inside of his leg causing him to fall to the ground. The 20-year-old victim then sought to intervene in the melee between the Applicant and the 15-year-old. In so doing, the 20-year-old victim became the subject of a closed fist punch from Mr P which resulted in that 20-year-old victim experiencing immediate pain and dizziness.
The melee between the four of them continued thus:
“During this, [Mr P] ran towards [the Applicant] and [the 15-year-old victim] who were still on the ground and [Mr P] kicked [the 15-year-old victim] in the back of his body. While this was occurring, [the Applicant] and [the 15-year-old victim] were grappling on the ground. [The Applicant] used his knees to pin the arms of [the 15-year-old victim] and then punched him in the face numerous times where [the 15-year-old victim] lost consciousness momentarily and was unable to defend himself.”[46]
[46]R2, SM1, page 2.
It should also be noted that the NSW Police Facts Sheet records these additional things:
“The offence considered in this matter is again one of extreme violence perpetrated on a random unsuspecting member of the public. The accused [the Applicant] and his co-accused [Mr P] attacked two boys, much smaller in size than them, one of whom was 6 years their junior and wearing a school uniform.
…
As a result of the assault by both of the accused persons, [the 15-year-old victim] spent two nights in Westmead Hospital. He was found to have a large amount of soft tissue injury and has required a neck brace since the date of the assault. For several nights following the assault, the victim was spitting up blood and felt a constant feeling of nausea and headaches.”[47]
[47]R2, SM1, pages 3,4 and 6.
The learned sentencing Magistrate[48] noted the following in her sentencing remarks:
“So clearly the behaviour on this occasion was absolutely unacceptable, directed towards kids who were much younger than you…you did not like the tone that was being displayed to you but you are reaching where that sort of behaviour is pretty childish, quite frankly, and it sees you in custody
…
…you are very young. It is about time that you started making much smarter decisions
…
Clearly the drug issue is something you are going to have to address… Nobody can stop the drugs except you and if you want to keep away from gaol that is something you need to address immediately.”[49]
[48]Her Honour, Ms L Viney SM.
[49]T11, page 314.
This conduct by the Applicant, committed in company with Mr P, could have, quite conceivably, resulted in a catastrophic outcome. It was very violent offending by the Applicant and Mr P without any thought about the consequences of their conduct. There is no “discount” or ameliorative factor to be applied in the Applicant’s favour because he committed the offences in company with Mr P. There is no “protagonist” in the offending as between the Applicant and Mr P. The Respondent validly submits that the Applicant’s commission of this offending in company with Mr P is a factor which aggravates the seriousness of the conduct. I find this conduct to be serious in nature.
Third, the Applicant was convicted of a third drug-related offence in July 2019. On that particular day, the Applicant was convicted of this offence at the Penrith Local Court and a three-month custodial term was imposed. As outlined earlier, he has two previous convictions for “Possess prohibited drug” that were imposed on him at the Local Parramatta Court in August 2017. This third drug related offence was committed on 25 May 2019 while the Applicant was in criminal custody. The factual circumstances of its commission are recorded in the material.[50] The full facts appearing in the relevant NSW Police Facts Sheet were read to the Applicant during cross-examination.[51] He readily accepted the accuracy of what was read out to him.[52]
[50]R2, SM7, p 349.
[51]See generally, Transcript page 84, lines 1-46 and page 85, lines 1-10.
[52]Transcript page 85, lines 12-14.
Once again, another person was involved with the Applicant’s offending. It involved him ingesting two coloured balloons containing a certain substance. The ingestion of these balloons was captured on the prison’s CCTV system. The Applicant eventually regurgitated the two balloons which were found to contain 69 Buprenorphine strips totalling 3.8 grams. During cross-examination, he attributed this offending to another person(s) (i.e. inside the correctional facility) threatening him with personal harm if he did not commit this offence as a means of bringing the drugs into the prison system for this claimed threatening person. His evidence was very unconvincing. The Applicant spoke of: (1) not knowing the female person who gave him the two balloons to swallow; (2) not knowing what substance(s) was in the balloons that he was going to ingest; and (3) not being able to produce or identify the claimed threatening person who apparently forced him into committing this conduct.
Also in cross-examination it was put to the Applicant that, although he had two previous convictions for drug-related offending, neither of those convictions acted as a deterrent factor preventing him from committing this third offence. He sought to resist this suggestion based on the unsubstantiated threat of physical harm he said he faced if he did not ingest the two balloons.[53] This claim of physical harm must be received with great caution and ultimately, rejected.
[53]See generally, Transcript page 87, lines 14-21.
The circumstances of the Applicant’s commission of this third drug-related offence is both concerning and serious. His involvement in the enterprise was significant to the extent that he was prepared to jeopardise his own personal wellbeing because he did not know what was in the two balloons he ingested, and he had no way of knowing what the health outcome for him would be were those two balloons to fail or start leaking after ingestion. The fact that he committed this third drug related offence while in criminal custody is also a matter of marked significance. There can be no other finding than that this 2019 drug offence does indeed constitute serious offending.
The length of the sentence(s) imposed
The Applicant’s criminal history demonstrates the imposition of custodial terms for at least three of the offences for which he has been convicted. Those convictions relevantly comprise: “robbery while armed with dangerous weapon” – 16 months’ imprisonment; “possession of dangerous drugs” – three months’ imprisonment; “common assault” – three months’ imprisonment. It is well-established that the imposition of a custodial term is the last resort in any correctly applied sentencing hierarchy. The reality that a sentencing court resorts to the imposition of a custodial term is, in and of itself, an indication of how serious that court apprehended the offending to be.[54]
[54]PNLB and the Minister for Immigration and Border Protection [2018] AATA 162, at [22].
This Applicant is not yet 26 years of age. His offending history in this country commences while a juvenile when he was dealt with at the [locality redacted] Local Court in October 2012 when he had just turned 16. Yet during an offending history that has run for about seven years, he has convictions for the commission of some 21 offences, noting that while there are more than this number of entries in his criminal history, some of those additional offences were the subject of: (1) a withdrawal; (2) a dismissal with a caution; and (3) an appeal that the Applicant initially filed but was subsequently noted on the history as ‘withdrawn’. Be that as it may, his offending has been of such severity that it has attracted the imposition of custodial terms and, for one conviction, the imposition of a head custodial term approaching one and a half years.[55]
[55]See generally R2, SM4, pp 236-242.
The Respondent makes the (with respect) responsible and model litigant-derived submission that “the sentences imposed are on the lower end of severity”.[56] That submission should be received with caution and tempered against the reality that this Applicant’s offending has been frequent across its duration and was such as to attract imposition of custodial terms on a relatively young offender. To my mind, while the custodial sentences (and sentences generally) imposed on the Applicant are not necessarily “long” they are nevertheless: (1) custodial in nature; and (2) have been imposed on a very young offender whose level of offending left judicial sentencing officers with no option other than to impose sentences involving an element of incarceration. I am satisfied that the nature and extent of the sentences imposed on the Applicant across the approximate seven-year duration of his offending history certainly speak to the serious nature of his offending.
[56]R1, p 23, para [45].
Any mitigating or aggravating circumstances
There seems to be a measure of common ground between the parties about a specific mitigating factor behind the Applicant’s pattern of offending. The contention revolves around the Applicant’s relative youth, his disadvantaged upbringing and limited levels of education and training. References are made to the Applicant’s very early period in Australia involving his arrival with his family from Afghanistan on a Special Humanitarian visa. It was accepted by his Honour, the abovementioned Judge Sides DCJ, that the Applicant’s family was forced to flee Afghanistan for Pakistan when he was only two years old following the execution of one of his aunts and the kidnapping of his father. Judge Sides also found that the Applicant and his family suffered further persecution and isolation in Pakistan because of their religious affiliation.
Judge Sides also found that a consequence of this persecution and isolation was that the Applicant became unavoidably exposed to continually violent and discriminatory behaviour. This isolated lifestyle caused the Applicant to not attend school and it would appear his education in Pakistan was a piecemeal and very much an incomplete affair. Judge Sides was satisfied that the Applicant’s upbringing caused him to suffer a disadvantageous childhood.[57]
[57]T5, pp 283-292.
Taking note of this background in the Applicant’s early development, the Respondent (to my mind) rightfully acknowledged that “the Applicant has experienced difficulty in adjusting to a life in Australia and experienced language barriers in his education.”[58] This element was noted by a clinical psychologist who prepared a report for tendering to the court which sentenced the Applicant for his offending involving “robbery with offensive weapon” in 2014. The following quote does, to my mind, capture the mitigating elements of: (1) difficult and disadvantageous upbringing in Afghanistan and then Pakistan; (2) incomplete and insubstantial education; (3) distracting feelings of anxiety and fear due to civil unrest; (4) persecution because of the family’s religious heritage and affiliation; (5) an awareness of military activity in his immediate vicinity; (6) the possibility of anxiety and mood disturbance in the Applicant’s symptomatology as a child; (7) the resulting development of feelings of isolation from others and a reluctance to place trust in others; and (8) the possibility of this Applicant developing an incomplete understanding and respect for the rule of law governing the community in which he found himself:
‘He reported that he had no memories of Afghanistan as he and his family had moved when he was very young to Pakistan to live in the town of Quetta, his report suggesting that the family lived in a house rather than a refugee camp. Having said that however he reported that he had not attended school, and only had periodic exposure to formal tuition. He spoke of the family having lived in some measure of anxiety or fear because of civil unrest in the area, at least in part directed towards people of Afghan Hazara descent, he speaking of his family and other Hazara being viewed unfavourably. He also spoke of being aware of fighting in the area (hearing gunfire for instance, and seeing people shooting guns) and having seen people being taken away in ambulances. Such experiences could be expected to impact on a child and as suggested could inter alia cause anxiety and mood disturbance; while also encouraging feelings such as being apart from others (particularly those who reject you) and the development of a lack of trust in others. It may also in my experience lead to an incomplete understanding of the rule of law (or even at times acceptance of it), particularly if one grows up in a situation where that rule does not exist or is unpredictable or conditional in its expression (and hence unreliable). Having lived a seemingly circumscribed and perhaps isolated life as a child, it may be that this impacted on his socialisation and understanding of the world.’[59]
[58]R1, p 24, para [47].
[59]See generally, Report of Peter G Champion, clinical psychologist, R2, SM3, pp 183-191. This quote is from page 187 of SM3, para [27] of Mr Champion’s report.
As against weight allocable to these mitigating factors is the reality that the Applicant was caused to endure such difficulties only until his early-mid teens. While Mr Champion (the reporting psychologist) may speak to the above elements as mitigating factors, the reality is that the Applicant is a man still in his early adulthood, appears to be in robust physical health and does not seem to have been (or to currently be) adversely affected by mental health symptoms. The clinical opinion in the material goes no higher than to suggest that at some future point there might be a requirement to investigate elements of mood disturbance and anxiety:
“On the day that I saw him I did not think that [the Applicant] would be likely to be found to be mentally ill within the meaning of the MHA, in terms that is of requiring involuntary hospitalisation. Nor did I think him likely to be found to be unfit on that same basis.
In sum, based on his report [the Applicant] does not present with clear indications of major mental illness, though I think that the issue of mood disturbance and possible anxiety disorder should be investigated at some point with a view to treatment if appropriate.”[60]
[60]R2, SM3, p 186, paras [24]-[25].
During his evidence, the Applicant referred to not experiencing any symptoms akin to depression and/or anxiety in 2014[61] but reported that he started developing melancholic feelings during particular times of his removal from the community, be it in criminal custody or immigration detention.[62] The difficulty with the Applicant’s contention of more recent symptoms of depression and anxiety is that there is little or nothing in the material of a clinical nature supporting that contention. While it may be, to an extent, understandable that the Applicant is experiencing negative thoughts as a result of the no doubt isolating impact that removal from the community would engender in most people, the Tribunal does not have the benefit of clinical opinion taking such feelings to the level of independently diagnosed symptoms of mood disturbance, depression and anxiety disorder, for example. In the absence of such clinical evidence, it is both difficult and unsafe to allocate anything more than minimal weight to this claimed mitigating factor.
[61]See Transcript, page 175, lines 10-15.
[62]See Transcript, page 66, lines 4-7 and lines 43-45, see generally pages 88-89 and page 136 lines 28-36.
A significant level of the Applicant’s offending was committed in the company of another person. This is postulated before the Tribunal in two ways. First, on behalf of the Applicant there is a suggestion that he had a propensity to act as a “follower” and to act as a willing participant in circumstances where he knew the other offender would take the lead. This may be true enough when one has regard to the circumstances of the 2014 conviction for “Robbery while armed with dangerous weapon”. The second and alternative way this element is put before the Tribunal is that, while it may be said the Applicant was a relatively young offender in 2014, by the time he had reached the age of 20 he committed the quite violent attack on the two victims in 2017. There is no suggestion from the circumstances of that offence that the Applicant was in any way a “follower” or secondary offender. During that offending: (1) it was the Applicant who induced the victims into a local park for the purposes of administering physical violence upon them; and (2) it was the Applicant who was urging his co-offender to repeat and indeed intensify the level of the physical blows on one of the victims.
To my mind, this element of the Applicant being a “follower” and otherwise not a protagonist, can only go so far as a mitigating factor. There is no suggestion that when he acted as a follower, that the principal offender or protagonist forcibly induced him into participating in the unlawful conduct. He may be said to have been a follower as a younger offender but even as an older offender he nevertheless willingly engages with a criminal enterprise, such that any review of his conduct in that criminal enterprise now can only lead to a finding that the Applicant willingly engages in unlawful conduct – even as a bit player – and that he otherwise knows exactly what he is getting himself into. This is evident from his willing participation in the ingestion of two balloons’ full of a substance the nature of which he probably did not even know as a means of a broader enterprise involving the smuggling of that material through the prison system. I have earlier rejected his explanation for this conduct involving a claim that he was threatened into doing this.
On the one hand, the circumstances of the Applicant’s upbringing and early youth in Afghanistan and then Pakistan can be said to have produced elements that could now be said to be causative of some type of psychological symptomatology predisposing him to offend. The difficulty with such a contention is that there is no, as it were, “connecting bridge” of a clinical nature demonstrating exactly how those earlier elements have now manifested into causative elements behind his offending. Accordingly, the Applicant’s age, background and life experiences prior to arrival in Australia cannot attract any significant level of weight as mitigative elements behind his offending.
In terms of aggravating factors, the Respondent has helpfully listed six such factors, each of which warrants analysis and discussion.[63] First, it is said the conduct around the conviction for “Robbery while armed with dangerous weapon” is an aggravating feature of the Applicant’s unlawful conduct because it involved a dangerous weapon comprising the imitation firearm. As noted by Judge Sides, the incident would have been traumatic for the victim and even though the gun was not capable of a mortal effect, this was something not necessarily known by the victim.[64] The further difficulty with offences involving imitation firearms is that some victims are not as compliant as this particular one. This type of offending could conceivably result in the unregulated discharge of a firearm by a duly armed and not compliant victim. That, in turn, could realistically draw members of the public into its orbit.
[63] R1, page 25, para [50].
[64] T5, page 284.
Second, it is said that the armed robbery on the petrol service station store and the common assault offences against the victim in the park were committed in company. On one view, this contention may be correct because offences committed in company are often seen as involving a broader scope of criminal activity and misadventure than a single offender acting alone. As against that, there is the reality that the Applicant was only too willing to commit offences on his own. That said, it can be safely found that he has little or no compulsion in involving himself in an opportunity involving criminal conduct in which a specific role is assigned to him. Third, it is said that the 2017 common assault convictions involve the Applicant targeting a victim who was actually a minor wearing a school uniform. To my mind, it can be safely found that the Applicant deliberately targeted a victim whom he considered to be vulnerable and likely to submit to whatever the Applicant required of that victim.
Fourth, it is said that the 2017 common assault convictions involving the Applicant taking umbrage at having his behaviour called out because the victims did not appreciate him harassing females on a train. The significant part of this aggravating feature is, I think, a reality that the Applicant was not prepared to tolerate external criticism and/or regulation of his general conduct. He was not prepared to tolerate the views of others and sought to express this intolerance by otherwise unprovoked and quite dangerous violent offending against those victims.
Fifth, a further aggravating element in this Applicant’s offending is said to be found in his failure to cease offending despite the imposition of a 16-month head custodial term in 2014. I think there is merit in this aggravating factor because it informs the totality of the Applicant’s offending. If he did not experience a deterrent effect in 2014 from a not-inconsiderable custodial term and continued to offend, how can it now be said his recidivist risk is of a sufficiently low level such as to no longer represent a danger to the community? This is especially so when one has regard to his extraordinary conduct while in criminal custody (and this is the sixth aggravating feature identified by the Respondent) involving his ingestion of two balloons’ full of a substance which was unknown to him.
Taken in total, I am of the view that the abovementioned aggravating factors are of a nature necessarily leading to a finding that they outweigh any claimed mitigating factors behind the Applicant’s offending. The aggregate of both mitigating as opposed to aggravating factors necessarily results in a finding that the Applicant’s offending has indeed been of a serious nature.
The criminal record in totality – including the extent and nature of any prior convictions and the period over which they took place
The Applicant’s criminal history is demonstrative of someone who has failed to experience any identifiable deterrent effect from sentences that have been imposed upon him. As is the case with the majority of sentencing regimes referable to other offenders, the earlier phases of sentencing commonly involve the imposition of non-custodial sentences thus giving the offender the opportunity to reform their conduct and to not further offend. Here, the Applicant received his most significant custodial term very early in his sentencing history. The disturbing element of his history is that, looking back on the totality of his criminal record, there can be no denying that he has experienced little or no deterrent effect from any of the sentences imposed on him.
This can be seen from his conduct while in prison and immigration detention. The totality of his unlawful conduct is indicative of someone who has convinced himself that he “belongs” to a life of crime and/or criminal enterprise. This Applicant has little or no history of holding down reliable remunerative employment. To him, the means of earning a livelihood are, unfortunately, to be found in associating with peers involved in unlawful activity. The same can be said about his attitude to other people in the community at a more general level. Where he disagrees with someone else or where someone else calls out his conduct as inappropriate, he is not prepared to accept such a reprimand with silence and/or compliance.
There are repeated failures to meet the lawful requirements of lawfully imposed court orders and sanctions compelling him to do, or refrain from doing, certain things. His history contains a number of breaches of bail. He has also committed a not insignificant number of traffic offences, a number of which have involved a failure to properly meet the requirements for the ownership and/or control of a motor vehicle on Australian carriageways. In 2015 there are nine instances of the Applicant failing to comply with the conditions governing a person’s right to hold a provisional driver’s licence.[65]
[65]R2, SM6, pp 333-334.
From the totality of the Applicant’s criminal history, I took the impression that he has made a conscious choice to associate himself with both unlawful elements and unlawful means of making his way in the community. His history is suggestive of someone who does not seem to accept either direct or indirect regulation of his conduct. A prime example of this propensity and choice can be found in his conduct involving the ingestion of the two balloons. This occurred in the so-called rehabilitative and controlled circumstances of a criminal custody facility. Yet even in those circumstances, the Applicant knowingly and willingly participated in a serious breach of the prison’s system aimed at keeping unlawful and other contraband outside its confines.
Thus, the totality of the Applicant’s criminal history, including its extent, nature and prior convictions imposed for its commission across its duration of approximately seven years can lead to no finding other than that his offending has indeed been of a serious nature and that it renders him a danger to the community.
The risk of re-offending and recidivism and likelihood of relapsing into crime
I have earlier referred to the sentencing remarks of Her Honour, Ms Viney SM, in which Her Honour identified an unresolved issue relating to the consumption of illicit drugs as being front and centre of this Applicant’s offending. It is not unsafe to assume and find that the Applicant does have unresolved issues with illicit substance abuse. It is similarly not unsafe to suggest and find that his unresolved difficulties with illicit substances have predisposed him to negative peer associations and a serious disorientation of his moral compass, such that he has not developed a capacity to distinguish right from wrong.
The state of the evidence is such that there is little or nothing before the Tribunal indicative of any clinical assessment, diagnosis or analysis of the Applicant’s psychological make-up and what, if any, extent his currently claimed “depression” symptoms now speak to his recidivist risk. The earlier mentioned report of the clinical psychologist (Mr Peter G Champion) dates from mid-2014. It is clearly out of date and not reliable for present purposes. However, Mr Champion did venture to suggest that certain elements of the Applicant’s psychopathology – such as mood disturbance and possibly anxiety disorder – “should be investigated at some point with a view to treatment if appropriate.” The obvious shortfall in the evidence that there has been no such investigation and/or remedial treatment plan (or equivalent) clinically applied and similarly overseen for this Applicant.
There are little or no other identifiable factors militating in favour of him representing a low recidivist risk in future. Indeed, there are elements which indicate a heightened recidivist risk or, put at its best, an unknown recidivist risk. I have earlier referred to his numerous breaches of bail. Perhaps a more concerning aspect of these breaches is the Applicant’s propensity to further offend while on bail. Significantly, he has re-offended while on bail and has multiple convictions for breaching bail. It is also notable that he repeatedly breached the bail granted to him after his offending in 2017 that resulted in the conviction for “Common assault”.
During cross-examination, the Applicant was questioned about his repeated breaches of bail. He seemed to understand that an obligation to meet bail conditions is indeed very important and significant.[66] He was specifically asked about certain reasons he provided to the authorities for his repeated failures to meet his bail conditions. For example, he agreed that travelling from New South Wales to Queensland to play soccer was not a reason for him to fail to comply with his bail.[67] By way of further example, he agreed that ignoring bail and going to his cousin’s house to recreate was likewise not a sufficient basis or reason for breaching his bail.[68] The Applicant appeared to readily accept that his breaches of bail were extensive and that he did not take his bail obligations at all seriously.
[66] See Transcript, page 142, lines 17-25.
[67] See Transcript, page 142, lines 27-37.
[68] See Transcript, page 144, lines 18-44.
“Mr Donaldson: Well, you'd accept though that at this point in time the cumulative effect of your breaches did eventuate in the court ultimately rescinding your bail, or taking away your bail and requiring you to return to custody. I believe you accepted that you did get returned to custody?
Applicant: Yes.
Mr Donaldson: Okay.
Applicant: Yes, that's correct, yes.
Mr Donaldson: So this is obviously a period of time ago. This is in 2013 and 2014, but the breaches of bail don't stop there, do they, Mr Applicant?
Applicant: No, I did have a lot of breaches. I agree with that one.
Mr Donaldson: Okay.
Applicant: Yes, I did have a lot, like, which I didn't take it serious.”[69]
[69] See Transcript, page 146, lines 32-46 and page 147, lines 1-4.
Upon further questioning, he agreed that his conduct with regard to bail was redolent of a complete disregard for those obligations.
“Mr Donaldson: I mean, by this time, Mr Applicant, you were a lot older than you were in 2013, you'd been in Australia for almost nine years, you had an extensive experience with the bail requirements, surely this is just a complete disregard of those obligations; is it not?
Applicant: Yes, it is, yes.”[70]
[70] See Transcript, page 154, lines 31-36.
In the final analysis, the Applicant sought to attribute his multiple breaches of bail to the influence of negative peers:
“Mr Donaldson: I guess my ultimate question to you then, is, how can all of these bail breaches, disregard of court ordered requirements, give the tribunal any confidence that you will not re-offend if you return to the community?
Applicant: That since 2015 to 2018/19 I never had any, like, good people around me. All I had is bad people around me, so I had a lot pressure going on on me, so sometimes I breached my bail, a lot of times I breached my bail because all my bad people around me, so I did mistake - a lot of mistake, yes.”[71]
[71]See Transcript, page 155, lines 25-33.
The Applicant’s conduct during his time in both criminal custody and immigration detention is such as to point to (at best) an unresolved recidivist risk. In the very environments in which he has been placed because his behaviour in the general community has been unacceptable (indeed unlawful) the Applicant has nevertheless displayed conduct which is clearly demonstrative of a readiness and willingness to re-offend. The material contains reference to incidents both in criminal custody and immigration detention that, although not the subject of any criminal conviction and sentence, are nevertheless demonstrative of a propensity towards unlawful conduct.
The material contains an “Officer Report Form” prepared by the Department of Corrective Services.[72] It relates to an incident during the Applicant’s time in criminal custody and, specifically, on Monday 20 July 2015. The circumstances of this incident warrant quoting in full:
[72]R2, SM2, p 71.
“At approximately 09:20 am on Monday 20th July, 2015 I was performing my duties as Senior Correctional Officer in "D" unit. At 09:20am I paged all "D" unit inmates to clear the unit so Cell Alarm checks and searches can be conducted.
An inmate known to me as [the Applicant], came up to the office window demanding a cash print out of his account. I said to inmate [the Applicant] "when the unit opens up at 10:30 came and see me and I'll be able to do the print out for you".
Inmate [the Applicant] said "No you will do it now".
I said "Excuse me? No you will clear the wing like everyone else is doing."
Inmate [the Applicant] said "No, get fucked cunt. Do it know. You've got nothing else better to do cunt. Do it now."
I said to inmate [the Applicant] "Clear the wing now or I will charge you."
Inmate [the Applicant] said "Get fucked I'm not clearing the fucking wing, you dog."
I said to 1/C CO [Officer] "Come with me while I chat to this inmate" [Officer] & myself then entered the foyer of "D" Unit where inmate [the Applicant] was.
I said to inmate [the Applicant] "exit the wing now".
Inmate [the Applicant] became visually aggressive and defiant and refused to comply with my request.
Again I asked inmate [the Applicant] to clear the wing and again I received the same response from [the Applicant].
I then said to inmate [the Applicant] "I am giving you a directive to go to your cell".
Inmate [the Applicant] said "No get fucked cunts"
I then said "I am giving you a directive to go to your cell or force will be used:'
Again inmate [the Applicant] said "Get fucked".
I then put a call over the radio for I.A.T to attend "D" Unit as an inmate was failing to comply with a directive.
[Officer] was standing behind inmate [the Applicant] during this incident. I saw inmate [the Applicant] quickly turn towards officer [Officer], to whom I saw [Officer] placed his hands on inmate [the Applicant’s] shoulders.
However as soon as officer [Officer] placed his hands on inmate [the Applicant’s] shoulders, he resisted and attempted to strike officer [Officer] with his right elbow to [Officer’s] head.
[Officer] & myself then placed inmate [the Applicant] on the ground. I then placed handcuffs on inmate [the Applicant].
Shortly after, the Immediate Action Team arrived and took control of the situation and took inmate [the Applicant] to the clinic.”[73]
[73] R2, SM2, pages 71-72.
The next incident that occurred in criminal custody was on 5 August 2016. Similar to the first incident, the conduct is at once both menacing and threatening. Once again, the circumstances of this incident warrant quoting in full from the relevant ‘Misconduct Report’:
“At approximately 11: 30 pm on 05 / August / 2016 I was performing my duties as Visits 6 Officer at Long Bay Hospital Sector 1 when the following incident occurred:
While performing my duties at the end of Visits session [sic] I was conducting a Strip Search on an inmate now known to me as [the Applicant].While conducting Strip Search i directed [the Applicant] to pull his underwear down to his knees But he did not .I directed [the Applicant] again to pull his underwear down he did it and said to me 'Watch out for your family, I will come get them' I said to [the Applicant] "What did you say'? [the Applicant] replied to me "You being a Smart Ass, i will come and get your family'. I said to [the Applicant] "I am not being a smart ass and it's a part of Strip Search process". [the Applicant] kept swearing and making threats towards me until i finished strip search on him. At no time i gave permission to behave in such a manner.”[74]
[Errors in original]
[74] R2, SM2, page 58.
It is, to my mind, of little or no value to the Applicant for present purposes that he caused both abovementioned instances to be dealt with by ways of respective acknowledgements of his guilt for both episodes. With reference to the former incident the relevant “Inmate Discipline Action” form records the Applicant as acknowledging his conduct by entering a plea of “guilty” for it.[75] With reference to the second incident, the relevant “Inmate Discipline Action” form, while recording a plea of guilty, nevertheless refers to the Applicant’s persistent petulance in making that concession. In the section of the form relating to the “Guilty Plea” the following is noted as being said by the Applicant at the time of entering the plea of guilty: “the Officer was being a dickhead, and I had a bad visit I couldn’t handle it.”[76]
[75] R2, SM2, page 90.
[76] Ibid, page 54.
The circumstances of the first abovementioned incident that occurred on 20 July 2015 were put to the Applicant during cross-examination. He unconvincingly sought to suggest that the incident was in fact provoked by the prison officer who was dealing with and addressing the Applicant in a racist way.[77] He unconvincingly sought to deny any suggestion that he struck the prison officer and that he (the Applicant) was provoked by the prison officer because, according to the Applicant:
“…he was pushing too much, being aggressive how could you say that to you, "Go back to your country, you Muslim something, you Muslim this, you Muslim that." Of course he's aggressive - is too much pushing people.”[78]
[77] See Transcript, page 92, lines 4-22.
[78] See Transcript, page 94, lines 17-20.
The circumstances of the second abovementioned incident that occurred on 5 August 2016 were also put to the Applicant during cross-examination. He accepted that he pleaded guilty to this incident[79] but denied making threats against the relevant prison officer’s family:
“Mr Donaldson: So you’re denying that you said, ‘Watch out for your family. I will come get them’?
Applicant:(Indistinct) I’m not – I – I am denying that. I’m saying – swearing to his family. I did not say that I would come get your family. I will never threaten somebody’s family. I did swear to him. But I never sweared this to him. But I never swear to somebody’s family.
…
Mr Donaldson: Surely, Mr Applicant, two correctional applicants would not report the same thing if that had not occurred, correct?
Applicant:I’m saying I did swear to him, not his family.”[80]
[79] See Transcript, page 98, lines 43-44.
[80] Transcript, page 98, lines 37-41 and page 99, lines 11-14
There are similar incidents involving the Applicant during his time in immigration detention. First, on 10 September 2019 the Applicant was involved in a physical altercation with another detainee over a game of table tennis.[81] The incident required intervention by the immigration detention authorities. When interviewed about the incident, the Applicant told the immigration detention centre authorities that “it was a fight and nothing happened, it’s over.”[82] The relevant report notes that both detainees did not display any signs of physical harm or damage arising from the incident and concludes with a notation that “…on returning the detainees shook hands and hugged stating that the issue was just a misunderstanding.”[83]
[81] T30, page 498.
[82] Ibid.
[83] Ibid.
In his written material, the Applicant sought to explain his role in this incident thus: “On 10 September 2019, whilst I was detained at the Villawood Immigration Detention Centre (‘VIDC’), I did not instigate the physical altercation, rather, I was attacked by another detainee and I was placed in a position where I had to defend myself.”[84] This was a theme he propounded during his answers in cross-examination.
“Mr Donaldson: Is it okay to get into a fight? What I was saying is, is it okay to get into a fight in response to somebody else attacking you? Is that the right approach, to use violence with violence?
Applicant: It’s not - it’s not okay. I’m not a violence too. I’m not a violence person. But the guy is trying to hit me, so how could - if somebody is trying to hit you, you’re going to just to stand there to get hit? I tried to get his hands off him, block him so he doesn’t hit me. That’s how I tried to defend myself.
Mr Donaldson: And why do you say that he was attacking you in the first place?
Applicant: Because - over table tennis. He’s trying to not let me play, so I tell him, “Okay, no worries”, and he starts swearing. He start coming up to me, because he was - he just start coming up to me. I’m like, “Okay. I don’t want to play.” And he hit me, because I was - first day, I was there.”[85]
[84] A2, page 1, para [3].
[85] Transcript, page 135, lines 1-18.
Second, on 10 March 2020, the Applicant was engaged in another physical altercation that saw him left with bruising and scratches to his face. The relevant “Client Incident Summary”[86] describes immigration detention officers hearing noises coming from a room in which the Applicant was situated with another detainee. This report further records that upon locating both the Applicant and his fellow detainee in the subject room, “…observed both detainees had been involved in what appears to be a physical altercation, as [the Applicant] had some bruises and scratches to his face, and detainee [i.e. the other detainee] was also sweaty and breathing heavily.”[87] The report further records that both detainees declined medical assistance.
[86] T30, page 494.
[87] Ibid.
In his written material, the Applicant denies any involvement in the subject incident “On 10 March 2020, whilst detained at the Yongah Hill Immigration Detention Centre (‘YHIDC’) I was not involved in an altercation in room two (2) of the Eagle compound as alleged.”[88] He further sought to unconvincingly explain his involvement in the melee by saying there was no physical altercation between him and the other detainee and that the detainee is responsible for the incident due to mental health issues confronting that person:
[88] A2, page 1, para [4].
“Applicant:We did not have fight or anything like that. We did like shout argument, but not fight. That time that day before, we were playing at (indistinct) we were playing touch and soccer. We’ve often done that time I remember. I had little bit crash on my side of my head. But we did not have fight that time in there.
…
Mr Donaldson: And what was this argument about, Mr Applicant?
Applicant: He was swearing at me, that’s all. I’m like, ‘why are you swearing at me?’ Because he can – if you find that guy’s report in detention, every officer knows that he’s – have a mental issue. And he swear to everybody. He attacks to everybody. If you can find it. Yes. I don’t know his name. He was just swearing at me out of nowhere.
Mr Donaldson: So it was unprovoked, was it, Mr Applicant?
Applicant: Yeah. He was just – out of nowhere, he would just start swearing at me, because there’s a lot of (indistinct) if – I don’t know his name became – ask him how is he – (indistinct) he’s in detention? They would tell you. That his – has a lot of argument with a lot of detainees. Like he’s not. In his – his mental is not there.”[89]
[89] Transcript, page 121, lines 20-24 and page 122, lines 21-27.
Third, there is reference in the material that on 11 August 2020 the Applicant physically restrained another detainee in a headlock. While seeking to explain his conduct he led the immigration detention authorities to believe that he and the other detainee “were only practising.”[90] The relevant “Incident Detail Report” records that an immigration detention centre officer heard a commotion and saw the Applicant having placed another detainee in a headlock and that a third detainee was yelling at both of them to stop.[91] The report further notes that the Applicant immediately desisted and returned to his allocated place in the detention centre without further incident.
[90] ST10, page 101.
[91] Ibid.
In his written material, the Applicant, again, adopts a position of a relatively innocent bystander being drawn into a broader melee which he did not instigate and from which he was trying to escape:
“On 11 August 2020, whilst detained at the YHIDC, whilst finishing my session at the gym, I was heading to the toilet, and there was a brawl between several detainees. Several innocent detainees and I got assaulted in a matter we were not involved or did not know what was going. I attempted to defend myself as much as possible (covering my face and running away).”[92]
[92] A2, page 1, para [5].
His oral evidence in cross-examination was equally unconvincing:
“Applicant: Yes, that’s correct, but I was not - I was not even there. I just went to - to piss and there was already a brawl happening. So I just walked up on them. I didn’t lock anybody’s head.
Mr Donaldson: Well, Mr Applicant, the description in the incident report is quite different to the description that you’ve got in your statutory declaration.
Applicant: Yes.
Mr Donaldson: I think you’d have to agree with that, wouldn’t you?
Applicant: I would not, because I was not there - the brawl. There was already brawl happening. I just went - when I went to toilet, I didn’t even know what was going on. I just walked away.
Mr Donaldson: Well, in your statutory declaration, you say that there was a brawl between several detainees.
Applicant: Yes.
Mr Donaldson: Now, the incident detail report does not indicate in any way that there was a brawl between several detainees. I put it to you that it would be strange that the officer would not refer to there being a brawl occurring, if that was indeed the case.
Applicant: There was a brawl happening, but I just go around it to piss, because I was just finished gym and (indistinct) and there was already a brawl happening. I just put my head down with my towel and run away. To defend myself, I run away.”[93]
[93] Transcript, page 124, lines 37-46 and page 125, lines 1-19.
Fourth, on 19 December 2020, the Applicant is reported to have been involved in yet another physical altercation, in this case involving multiple detainees. This incident involved the immigration detention authorities invoking the equivalent of an adverse incident response. The relevant parts of the report say the following:
“On Saturday 19th December 2020 at 20:56hrs, "Response Code Black Blue 1 Compound "was called by DSO due to detainees being involved in a physical altercation in Block B.
Upon arrival in Blue 1 Compound Duty FOM observed that there was multiple detainees yelling, pushing and throwing punches towards each other in Block B.
ERT Staff were already on site and were conducting crowd control, presences and trying to de-escalate the situation.
Detainee [redacted] and [the Applicant] were both observed arguing with detainee [redacted] along with other African Cohorts who detainee had made claims that detainee had gone into his room without his permission and detainees were sighted pushing and abusing each other.
Detainee [the Applicant] was sighted throwing punches towards detainee [redacted] and other African Cohorts…”[94]87.In his written material, the Applicant adopted the now-familiar obfuscatory position of either complete innocence or of being inadvertently drawn into the orbit of offending by others:
“On 19 December 2020, whilst detained at the Christmas Island Immigration Detention Centre (‘CIIDC’), I was not involved in the physical altercation, though, I was present at the time and attempted to deescalate the altercation between the detainees in B Block of the CIIDC.”[95]
[94] ST8, page 94.
[95] A2, page 1, para [6].
He gave similar obfuscatory and unconvincing evidence about this incident during cross-examination:
“Mr Donaldson: Okay. So in your statutory declaration, as I said earlier, it says that you were present but not involved in the physical altercation and you attempted to deescalate and you agreed with that, didn’t you? That was correct?
Applicant: Yes, yes.
…
Applicant: I was there. I was there. I was there, but I did not throw any punches. I tried to stop the fight of that.
Mr Donaldson: So are you saying again that another officer has inaccurately reported what was going on and described the situation so differently to how you say it occurred?
Applicant: I remember this – I remember all this, that I did not throw any punches and I tried to stop the fight from there. Maybe they think that I did throw punches, but to (indistinct) that’s why they think that I punched somebody. No. I did not.”[96]
[96] Transcript, page 129, lines 26-31 and page 131, lines 20-30.
The Applicant’s purported explanation or factual reconciliation of the incidents in both criminal custody and immigration detention is both lacking in credibility, uncorroborated and otherwise unsubstantiated. His version of events is nearly always squarely at odds with what independent prison officers and/or immigration detention officers observed and recorded. He never identifies himself as the aggressor nor makes any limited or other concession to the effect that, for example, a momentary lapse of reason or of self-control caused him to do what is recorded in any of these incident reports. On each occasion either the relevant independent observers have gotten their story wrong, or the Applicant proposes a completely implausible re-statement of what he says actually occurred.
At the risk of repeating myself, the Applicant’s conduct in the closed confines of both criminal custody and immigration detention does not bode well for his prospects of maintaining a low recidivist risk if returned to the unsupervised and uncontrolled circumstances of the general community.
There is little or no evidence of rehabilitative efforts by the Applicant as a means of identifying pre-dispositive factors behind his offending. The overwhelming theme of his evidence is to deny and obfuscate the facts instead of being able to point to positive steps he has taken to remove elements that have previously caused him to offend. He has not explained why he will readily resort to a violent imposition of his will upon a situation that he regards as either difficult to resolve or that is in some other way and impasse to him. It is difficult to find any evidence – written or oral – from this Applicant convincingly suggestive of any remorse or regret for his conduct. He has not accepted virtually any of the circumstances of his wrongdoing.
I am hard-pressed to find anything in the totality of the Applicant’s evidence to satisfy me that, were he returned to the community, his approach to difficult situations will be anything different than what it was prior to his removal from it. It therefore follows that a finding can be safely made that this Applicant’s recidivist risk is absolutely no different to what it was at the time of his most recent removal from the Australian community. Accordingly, the Applicant’s recidivist risk can only point to him representing an ongoing and unresolved danger to the community were he returned to it.
There remains the residual issues of the Applicant’s involvement with negative peer groups. It is a matter of concern that in the context of this case, those negative peer groups do not comprise a relatively small group of errant individuals who have caused the Applicant to follow a path of irresponsible and unlawful conduct. While it can be accepted that the Applicant does not carry convictions for involvement in or participation with an organised criminal network, the material does contain a police intelligence report pointing to the Applicant’s involvement with such networks.[97] I will redact the relevant portions of this report which could identify either the subject criminal groups and/or the Applicant. It suffices to say that the report has been prepared by a Detective Senior Constable of New South Wales Police, is dated 15 July 2019 and says the following:
[97] T28, page 483.
“The New South Wales Police Force have identified a high-level, sophisticated criminal syndicate operated by two well-known criminal figures; [redacted in original] and younger brother [redacted in original] who both reside within the family home of [redacted in original].
Background & History
Since 2012, the [redacted in original] brothers have been extensively involved in Middle Eastern Organised Crime namely associating with criminal figures of Afghan decent. These figures included [redacted in original] and [redacted in original]. All of these figures were high profile members of the now disbanded [name redacted] Middle Eastern Crime Gang. Many of these figures are now serving custodial sentences for homicide and public place shooting offences.
Since the dismantle of the [name of gang redacted], the [redacted in original] brothers have increased their standing within the criminal underworld to become high profile figures in their own right. Following the collapse of the [name of gang redacted] in 2014, the [redacted in original] brothers have since identified as members of; [name of gang redacted] (AKA [name of gang redacted] or [name of gang redacted]). At that time, they seized the opportunity to increase their criminal enterprise primarily in the suburb of [suburb redacted] as well as nearby suburbs in [location redacted] Sydney.
…
Since this time though, the [redacted in original] brothers have taken up the roles as head of the renamed criminal syndicate; [name of gang redacted].
…
[Name of police station redacted] believe the brothers have continued the operation under this new criminal group supplying large amounts of prohibited drugs, money laundering and being involved in various public place shootings. The group has a history of violence with many members believed to have been involved in stabbings and shootings.
…
Prohibited Drug Supply
Through an extensive police investigation, it is suspected that the syndicate are operating a large commercial supply of methylamphetamine, heroin and cocaine to nearby suburbs and other parts of [location redacted] Sydney. It is believed the operation is primarily based from the [redacted in original] residence at [redacted in original], namely a double car garage in the basement of the complex which has been converted into a self-contained living area and office. It has been identified that the garage unit is occupied/guarded at all times by lower ranking members of the syndicate to protect the assets of the syndicate. During this component of the investigation police suspected that nearby locations were being utilised as a point of sale for the prohibited drugs being supplied by the syndicate.
…
Syndicate Members/Associates
On the [date redacted], the family were sentenced at the Supreme Court for homicide. During the sentencing many of their associates and syndicate members attended the sentence showing their support. Since then a number of persons identified as being members of the previous [name of gang redacted]/[name of gang redacted] syndicate are now members of the [name of gang redacted].
Through intelligence holdings and previous reported incidents, the following individuals have been identified as having involvement within the syndicate;
…[identities of POI[98] 1-4 redacted]
[98] POI: Person of Interest.
POI 5:[the Applicant] (previously identified with [name of gang redacted] and [name of gang redacted])
DOB: [redacted]
ADD: Currently bail refused
…[identities of POI 6-8 redacted]
…
It is believed that [names of first four POIs are redacted in original] and [the Applicant’s] involvement is high. The group have access to firearms which are confirmed as being stored within the complex of [location redacted].
Firearms Prohibition Search – [date redacted]
At 6:05am on Thursday [date redacted], officers attached to [name of police station redacted] with the assistance of Tactical Operations Group executed an entry to the dwelling unit of [address redacted] as well as the detached basement garage. Entry was in relation to a firearms prohibition order search. Both [name of person redacted in original] and [name of person redacted in original] are subject to FPOs. On entry to the basement garage [the Applicant] was found sitting in there. Initially, [the Applicant] refused to provide correct details both by not providing details then by providing false details. [The Applicant] was eventually identified using an infield fingerprint identification. He was arrested for breach of bail and is currently bail refused. He was found to be on the run from police and failing to appear in court as per his bail conditions. [The Applicant] had been on the run for several months before his arrest on [date redacted].
…”[99]
[99] T28, pp 483-486.
In his written material the Applicant acknowledges a past involvement with the same criminal gang elements referred to in the abovementioned police intelligence report. He now claims to have severed his connections with those elements:
“…I have never been in motorcycle gang or declared any association with same.
I acknowledge that I was acquainted with members of the now disbanded [name of gang redacted] and [name of gang redacted], to which I am extremely regretful of. However, I categorically deny that I had any meaningful involvement in the operations of the now disbanded [name of gang redacted] and [name of gang redacted], contrary to the New South Wales Police report dated 15 July 2019, my involvement was neither ‘high’ or to any meaningful degree. I was of a very young age at the time. I have learnt that my association with members of the now disbanded [name of gang redacted] and [name of gang redacted] had serious consequences on my character and standing in the community. Since having the realisation that my association with members of the now disbanded [name of gang redacted] and [name of gang redacted], I immediately severed my connections and contacts with those members.”[100]
[100] A2, pp 1-2, paras [9]-[10].
His involvement with organised criminal activity was put to him in cross-examination. He responded thus:
“Mr Donaldson: Okay. And you say here that were an associate with [name of gang redacted] [location redacted]. What is [name of gang redacted][location redacted]?
Applicant: [name of gang redacted] - I don’t know very much about that. I just met some of them in gaol, so I thought maybe I would - I have friends - I (indistinct) I just said, ‘associate.’ I mean I’m with them, you know, associate with them.
Mr Donaldson: So, ‘[name of gang redacted],’ that’s, ‘[name of gang redacted],’ isn’t it? The gang, ‘[name of gang redacted],’ that’s right?
Applicant: Yes, that’s correct. Yes.
Mr Donaldson: So you say you were with them but not associated with them - can you please explain the difference to the tribunal?
Applicant: I don’t know what, like, ‘associate,’ means. Like, I just told them that I - I was with them, and - in name of gaol redacted] Gaol - and I know some of them, and I don’t know very well. And I’m with them, so they might say I’m associate with them.
Mr Donaldson: So when you said that you were - lots of bad people around you - are you talking about these members of [name of gang redacted]? Are these the bad people that were around you in the period 2015 to 2018?
Applicant: No, not really of them. Like, a lot of bad peoples, not always them. I’ve never met any of them outside, I only knew them, some of them, from the gaol, some of them. And from outside maybe I’ve seen some, and I hang out somewhere with them. That’s when I had a lot of bad friend - when I had some of them - and (indistinct) I hang out with them because I have other people - I had friend too.”[101]
[101] Transcript, page 192, lines 33-46 and page 193, lines 1-15.
The totality of the evidence – both written and oral – around the Applicant’s level of involvement with organised criminal groups is suggestive of: (1) an acceptance by him that he was previously identified as having an involvement with one or more of those organised criminal groups; and (2) the abovementioned police intelligence report confirms his physical presence at a location linked to one of the organised criminal syndicates known to police as a repository for firearms and illicit drugs.
There is additional material before the Tribunal comprising intelligence referred to and relied upon by the immigration detention authorities at the time of receiving the Applicant into immigration detention. Specifically, there is a Serco ‘Security Risk Assessment’ performed on the Applicant which relevantly records the following:
“INTELLIGENCE COMMENTS
[The Applicant] is an s501 detainee with a criminal history involving violence, drug and traffic type offences. His adverse incident history also suggests a propenstity [sic] for mild aggression. As a result, SIS Intel assess as LIKELY he will be non-compliant whilst in detention and POSSIBLY become aggressive if challenged.
According to information from Australian Border Force (ABF) Detention Security, [the Applicant] is believed to be a member of the [name of gang redacted], also known as the [name of gang redacted] or the [name of gang redacted]. [The Applicant’s] involvement with the group is believed to be high, although his exact role/position is unknown. SIS Intel assess as PROBABLE [redacted in original] (detainees visitor whilst at VIDC) has an association with an [nationality of gang redacted] criminal gang based on his offending history and associations to both [the Applicant], and former detainee [redacted in original]. SIS Intel assess as PROBABLE [the Applicant] will continue his criminal associations if accommodated at VIDC through visits, and through phone/internet when accommodated elsewhere. SIS Intel assess as PROBABLE [the Applicant] will garner respect from the current s501 cohort based on his associations, with the potential to exploit these for standover and intimidation. With the maintenance of their association and the capabilities evidenced by their respective criminal histories and associations. SIS Intel assess as PROBABLE they can coordinate inward facing criminal activity, such as the infiltration of illicit substances and contraband. In addition to external facing impacts, such as involvement in incidents of violence in the community.
[The Applicant] community. SIS Intel assess as LIKELY he would be able to support himself or be supported by others in the community if he escaped. Based on the above information, SIS Intel currently assess [the Applicant] as a HIGH placement and escort risk.
…
SECURITY ASSESSMENT
…
Aggression/Violence High
Criminal Profile High
DSP[102] Placement Risk High
DSP Escort Risk High”[103]
[102] DSP: Detention Security Provider.
[103] T27, page 459.
During cross-examination the Applicant accepted that at least one member of the named organised criminal gang had visited him while in immigration detention in Sydney:
“Mr Donaldson: Sorry, (indistinct) somebody did come and visit you at Villawood (indistinct)
Applicant: Somebody - yes, my friend (indistinct) visit me, yes.
Mr Donaldson: And this friend that came and visited you was one of the friends that was associated with the [name of gang redacted] criminal group, or the [name of gang redacted]
Applicant: I’m not sure about - yes - the one that I used to go see him as a friend, he come and visit me once. Some of them, yes.
Mr Donaldson: Okay. So is it accurate to say that you haven’t severed your connections with those people? You say in your statutory declaration that you immediately severed your connection, but I understand you’re now saying that they’ve actually come and visited you while you’ve been in immigration detention?
Applicant: Yes, that’s correct. Yes.”[104]
[104] Transcript, page 206, lines 29-74.
The Applicant was unconvincing in explaining the discrepancy between his abovementioned written statement where he claimed to have severed all ties with these criminal groups and the reality – on his own evidence given in cross-examination – that he had been visited by one member of such a group while in immigration detention.
Findings about recidivist risk
I have sought to review and analyse the various components of the evidence speaking to the Applicant’s recidivist risk. I summarise my findings thus:
·The Applicant’s issues with illicit drugs remain unresolved. The extent to which difficulties with illicit drugs may have predisposed him to re-offend remains unknown. The likelihood of his returning to a pattern of abusing those substances remains unknown and has not been the subject of any clinical assessment;
·The Applicant has a demonstrated pattern of conduct pointing to a failure and refusal to observe the requirements of lawful authority be it in the form of a grant of bail or with reference to driver licence requirements for the operation of a motor vehicle;
·The pattern of his conduct in both criminal custody and immigration detention points to an unresolved propensity to refuse submission to lawful authority and to otherwise resolve impasses and difficulties in his life with anything other than physical violence upon those with whom he does not agree;
·It is difficult to accept that he has put his pattern of offending behind him in circumstances where, during his time in criminal custody he readily involved himself in the ingestion of two balloons containing a substance or substances that were most probably not even known to him. It is likewise difficult to accept that he was caused to do so as a result of threats made to him;
·Apart from the now nearly eight-year-old observations of the clinical psychologist Mr Peter G Champion, there is little or nothing by way of more recent independent clinical evidence addressing: (1) the elements of the Applicant’s psychological symptomatology predisposing him to offend; (2) the extent to which those issues are or have been the subject of some type of remedial management and control; and (3) the likely prognosis for this Applicant in terms of managing those causative elements behind his past offending;
·There is concerning and convincing police intelligence about the Applicant’s involvement in organised criminal groups. The police are not just saying things on paper about the Applicant. They have, via a duly executed search warrant, located him at a facility connected to at least one of the organised criminal groups with which the Applicant is said to have been associated. His explanation for being located at the basement of a specific locality, being the subject of the search warrant, on [date redacted], is unconvincing, obfuscatory and implausible;
·Equally concerning is the “Security Risk Assessment” prepared by Serco contemporaneous with the Applicant’s receipt into immigration detention. The narrative beneath the hearing “Intelligence Comments” is self-explanatory. The assessment culminates in unanimous “high” assessments for the Applicant’s risk for “aggression/violence”, “criminal profile”, “DSP placement risk” and “DSP escort risk”.
·The Applicant’s purported severing of ties with such organised criminal groups (as claimed in his written material) was, to my mind, fatally challenged by his acceptance in cross-examination that he has received at least one visit from a member of those groups while he was in immigration detention in Sydney.
I am therefore satisfied that the Applicant’s recidivist risk is now absolutely no different to what it was at the time of his most recent removal from the Australian community. The unknown and unresolved level of that recidivist risk means that there can be no other finding than that he constitutes a danger to the Australian community.
Prospects of rehabilitation
I have already mentioned the absence of any recent independent and expert clinical opinion addressing any aspect of the Applicant’s rehabilitation. The totality of his evidence – both oral and written – presently before the Tribunal is indicative of a person who has failed to experience any noticeable level of remorse or regret for his unlawful conduct in this country. Due to the absence of any evidence of his engagement with any rehabilitation process, I must find that his prospects of rehabilitation are poor.
Similarly, he was largely silent about any intention to meaningfully engage with any rehabilitative process upon a return to the community. To the extent that any positive influence may be exerted on him by members of his family such as to moderate his propensity towards negative peer association and serious offending, such a contention can be safely rejected because those claimed family links did little or nothing to minimise his past offending. Notably, not a single member of his family gave evidence for him at the Hearing before me.
As already mentioned, the Applicant’s pattern of criminal offending demonstrates that he experienced little or no deterrent effect from the sentencing regimes imposed upon him. In a similar way, it can be found that the closed environments of both criminal custody and immigration detention have failed to exert any measure of moderation of his behaviour or propensity to seek recourse to violent means to achieve his desired outcomes. The concerning element from the material is that no one – not the Applicant, nor an expert, nor a family member – knows the extent to which the causative elements in the Applicant’s psychological symptomatology cause him to repeatedly display extremely antisocial, and ultimately unlawful, conduct.
To the extent the Applicant may now say he wishes to change his ways and lead a more regular and sober lifestyle, that contention is difficult to sustain in circumstances where: (1) he has been unable to lead such a life in the closed environments of criminal custody and immigration detention; (2) while in his written material he purports to disassociate from criminal elements, there are at least two very credible intelligence reports connecting him to such groups; and (3) he accepted in cross-examination that he has received at least one visit from a member of such group while in immigration detention.
The very primitive level (if any) of the Applicant’s rehabilitation to date does not bode well in terms of the extent to which he was and remains a danger to the Australian community.
CONCLUSION
I have had regard to the totality of both written and oral material presently before the Tribunal. I have sought to analyse the evidence with specific reference to the relevant considerations outlined in WKCG. I can reach no other finding than that there remains a high level of risk of this Applicant violently re-offending if returned to the Australian community. I am therefore of the view (and I find) that he remains a danger to the Australian community.
The state of the evidence is such that the danger this Applicant represented before his removal from the Australian community is now no different than what it was at that time. There is next to nothing in the evidence pointing to a reduced (or prospects of a reduced) recidivist risk. There is nothing by way of recent independent clinical opinion speaking to his recidivist risk. The Applicant can point to little or no engagement with the rehabilitative process. We do not know how, if at all, even if he did engage with a rehabilitative process, it would serve to lower his recidivist risk. It cannot be reasonably expected that the Australian community should be exposed to these unknown elements and to otherwise re-experience the consequences of the Applicant’s unlawful conduct.
DECISION
The Tribunal affirms the reviewable decision dated 8 April 2021 and finds that:
(1)having been convicted of a particularly serious crime, the Applicant is a danger to the Australian community within the meaning of ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act; and
(2)the Applicant is not eligible for a Protection visa pursuant to s 35(1A) of the Act.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
................................[SGD].............................
Associate
Dated: 15 March 2022
Date(s) of hearing: 29, 30 September and 21 October 2021 Applicant Representative: Self-represented Respondent Representative: Mr R Donaldson, Lawyer
Clayton UtzANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
T
Section 37 T-Documents
(T1-T33, paged 1-523)-
7 June 2021
ST
Section 37 Supplementary T-Documents
(ST1-ST12, paged 1-103)-
1 July 2021
R1
Respondent’s Statement of Facts, Issues and Contentions
(paged 1-33, 87 paragraphs)8 September 2021
8 September 2021
R2
Respondent’s Materials Produced Under Summons
(SM1-SM7, paged 1-351)-
28 July 2021
A1
Applicant’s Statement of Facts, Issues and Contentions
(paged 1-12, 55 paragraphs)-
17 August 2021
A2
Statutory Declaration of Applicant
(2 pages)8 March 2021
17 August 2021
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
-
Natural Justice
0
7
0