HDYP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1269
•19 May 2023
HDYP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1269 (19 May 2023)
Division:GENERAL DIVISION
File Number(s): 2022/4813
Re:HDYP
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:19 May 2023
Place:Perth
The decision of the delegate of the Minister made on 8 June 2022 to refuse to grant the Applicant a Class XA (subclass 866) Protection visa under s 65 of the Migration Act 1958 (Cth) is affirmed.
...[Sgd].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 36(1C) of the Migration Act – refusal to grant a protection visa under s 65 of the Migration Act – whether the applicant has been convicted by final judgment of a particularly serious crime – whether applicant is a danger to the Australia community – multiple violent offences – several terms of imprisonment – alcohol and drug misuse as a risk factor – lack of protective factors against reoffending – applicant would pose a real or significant risk or possibility of harm if released into the Australian community – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Migration Act 1958 (Cth) ss 5M, 36(1C), 36(1C)(b), 36(2C)(b) 36(2)(aa), 47, 65, 499, 500(1)(c)(i), 501CA(4)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745
CCYW and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4452
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 514
DOB18 v Minister for Home Affairs [2019] FCAFC 63
EBD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 334
EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536
HSCK and Minister for Home Affairs [2019] AATA 4392
HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1967
KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1229
LKQD v Minister for Immigration [2019] FCA 1591; (2019) 167 ALD 17
WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434
MHCZ and Minister for Home Affairs [2019] AATA 4259
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
MQHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 119
RWDX and Minister for Home Affairs [2019] AATA 123
Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
SQDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2980
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531
Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27
XFKR and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 95
SECONDARY MATERIALS
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) arts 33, 33(2)
Department of Home Affairs, Refugee Law Guidelines (15 November 2022)
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth)
Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017)
REASONS FOR DECISION
Deputy President Boyle
19 May 2023
THE APPLICATION
This is an application for the review of a decision of a delegate of the Respondent (Minister) made on 8 June 2022 to refuse to grant the Applicant Class XA (subclass 866) Protection visa (the protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1] T docs/7-37.
The delegate of the Minister found that the Applicant is a person in respect of whom Australia has protection obligations. The delegate was satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Samoa, there is a real risk that the Applicant will suffer significant harm.[2]
[2] T docs/7.
The protection visa was refused because the delegate of the Minister was not satisfied that the Applicant met the criterion in s 36(1C) of the Act for a protection visa. In particular, the delegate was satisfied that the Applicant, having been convicted of a “particularly serious crime”, is a danger to the Australian community and, as a consequence, did not satisfy the criterion in s 36(1C)(b) of the Act. The delegate further found that s 36(2C)(b) of the Act applies, and therefore the Applicant does not satisfy the criterion in s 36(2)(aa).
THE ISSUES
The issues for determination are:
(a)whether the Applicant has been convicted by a final judgment of a particularly serious crime within the meaning of s 5M of the Act; and
(b)whether the Applicant is a danger to the Australian community.
BACKGROUND
The Applicant is a 46-year-old Samoan national who first arrived in Australia in October 1995, aged 19.
The Applicant was first convicted of an offence in August 1999 when he was convicted in the Melbourne County Court for possession of cannabis and criminal damage by fire.[3] The Applicant subsequently committed multiple violent offences including assault police, recklessly cause injury, intentionally cause injury and intentionally cause serious injury. He has served four periods of imprisonment.
[3] T docs/266.
On 30 January 2008, the Applicant was sent a ‘formal counselling letter’ by a delegate of the Minister, warning him that any further criminal convictions could result in consideration of the cancellation of any visa that he might hold.[4]
[4] T docs/303.
The Applicant’s offending increased in seriousness. On 29 May 2013 the Applicant was convicted in the County Court of Victoria of armed robbery, make threat to kill, prohibited person possess firearm, unlawful assault and other offences. The Applicant was sentenced to terms of imprisonment for these offences. The Applicant appealed the sentences and by judgment on 13 August 2013, the Supreme Court of Victoria Court of Appeal sentenced the Applicant to terms of imprisonment totalling eight years, seven months and fourteen days which, with concurrent sentences, resulted in an effective total term of imprisonment of seven years and six months.[5]
[5] T docs/293.
The Applicant’s full criminal record, as disclosed by the National Police Certificate,[6] is as follows:
[6] T docs/263-6.
Court
Court Date
Offence
Court Result
Melbourne Supreme Court
13 August 2013
Armed robbery
Make threat to kill
Prohibited person possess firearm
Neg deal prop become instrument of crime
Unlawful Assault
Unlicensed driving
Use threatening words in public place
6 years imprisonment
3 years imprisonment. 2 years, 6 months of sentence concurrent
3 years imprisonment. 2 years of sentence concurrent
18 months imprisonment concurrent
6 months imprisonment concurrent
1 month imprisonment concurrent
14 days imprisonment concurrent
Total 7 years, 6 months
Bairnsdale County Court
29 May 2013
Possess ammunition without licence
Use drug of dependence
Convicted and discharged
Melbourne Magistrates Court
22 April 2013
Resist police
Possess drug of dependence – prescript drug
14 days imprisonment concurrent
With conviction, fined $500.00 with $107.80 statutory costs
Melbourne County Court
5 February 2010
Intentionally cause injury
12 months imprisonment.
Sentence suspended for 12 months under section 27 of Sentencing Act 1991
Bairnsdale Magistrates Court
11 February 2008
Intentionally cause injury
5 months imprisonment concurrent
Sentence is wholly suspended under section 27 of the Sentencing Act 1991 Operational period is 12 months
Bairnsdale
Magistrates Court
28 June 2007
Intentionally cause injury; Resist police (2 charges)
Unlawful assault
Criminal damage (intent damage/destroy)
Act prejud sec/
good order/
management gaol;
Drunk in public place (2 charges)Act prejud sec/ good order/ management gaol
Aggregate 7 months imprisonment concurrent
With conviction, fined an aggregate of $1500.00
With conviction, fined an aggregate of $1500.00 pay compensation $2147.00
Moe
MagistratesCourt
13 December 2005
Recklessly cause injury
Unlawful assault
Aggregate 3 months imprisonment concurrent
Melbourne County Court
25 October 2005
Breach re 24/06/2004 intentionally cause serious injury
Intentionally cause serious injury
Assault police on duty
Criminal damage (intent damage/destroy)
Breach of suspended sentence
Sentence reinstated
Aggregate 165 days
Melbourne County Court
4 October 2005
Breach re 10/10/2002 recklessly cause injury
Breach of community-based order.
Order cancelled.
Convicted and released on an adjournment to 3.10.06
Moe
Magistrates Court14 December 2004
Unlawful assault
With conviction, fined $800.00
Melbourne County Court
24 June 2004
Intentionally cause serious injury
Intentionally cause injury
Assault police on duty criminal damage (intent damage/destroy)
Common law assault
9 months imprisonment
6 months imprisonment. 5 months of sentence concurrent
3 months imprisonment on each count. 2 months of each count concurrent. Total 12 months. 1
65 days of sentence suspended for 12 months under section 27 of the Sentencing Act
Convicted community-based order for 12 months
Broadmeadows Magistrates Court
12 March 2004
Recklessly cause injury, Resist police
(3 charges)Unlawful assault (3 charges)
Make threat to kill Act in a disruptive manner – police gaol
Drunk in a public place (2 charges)
State false name when requested
Use threatening words in public place
Aggregate 4 months imprisonment concurrent
With conviction, fined an aggregate of $750.00
Melbourne County Court
10 October 2002
Recklessly cause injury
Convicted community-based order for 12 months, to perform 150 hours unpaid community work
Broadmeadows
Magistrates Court
2 May 2001
Assault police/person assisting police (2 charges)
With conviction, fined an aggregate of
$1000.00
Melbourne County Court
13 August 1999
Criminal damage by fire (arson)
Possess cannabis
Convicted community-based order for 12 months. To perform 100 hours unpaid community work over 6 months
Convicted and fined $150
The Applicant’s spouse visa was cancelled on 2 February 2017 under s 501(3A) of the Act.[7] On 14 May 2019 a delegate of the Minister decided not to revoke the cancellation of the Applicant’s visa.
[7] T docs/296.
The Applicant unsuccessfully sought merits review of that decision in the Tribunal.[8]
The Applicant then unsuccessfully sought judicial review of the Tribunal’s decision in the Federal Court of Australia[9] and the Full Court of the Federal Court.[10]
[8] Tribunal’s decision dated 31 July 2019: T docs/295-349.
[9] Judgment handed down on 20 December 2019.
[10] Judgment handed down on 5 June 2020. The case names and citations of other cases involving the Applicant have been omitted because s 501K(2) of the Act prohibits publication of information which may identify a person who has applied for a protection visa. The Applicant is such a person. For the same reason names of witnesses have not been reproduced in these reasons.
On 13 July 2020, the Applicant applied for a protection visa. The application for a protection visa was refused by a delegate of the Minister.
The Applicant sought review by the Tribunal of the delegate’s decision to refuse the protection visa and, by decision dated 12 March 2021, the Tribunal remitted the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Act.[11]
[11] T docs/106-36.
On 8 June 2021 the Applicant’s application for the grant of a protection visa was again refused by a delegate of the Minister (see [1]-[3] above). It is that decision to refuse the grant of the protection visa that is the subject of these proceedings.
THE HEARING AND THE EVIDENCE
The application was heard on 10 October 2022. The Applicant appeared on his own behalf and the Minister was represented by Mr A Gerrard of the Australian Government Solicitor. The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)The Applicant’s daughter Ms T; and
(c)Ms C, who is the Applicant’s former partner and mother of Ms T.
The following documents were filed by the parties:
(a)Documents lodged by the Minister pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T docs)
(b)Supplementary bundle of T docs lodged by the Minister (ST docs)
(c)Statements, letters, photographs and other material lodged by the Applicant on 6 September 2022, including:
(i)A letter of support from the Applicant’s son TU, dated 4 September 2022;
(ii)A letter of support from Ms T’s housemate , dated 4 September 2022;
(iii)A letter of support from Ms C, dated 5 September 2022;
(iv)A letter of support from Ms T, undated;
(v)A letter of support from Ms T’s partner , undated;
(vi)Confidential Recommendation Report from the Victorian Department of Families, Fairness and Housing for the Applicant’s daughter, KU ;
(vii)Confidential Recommendation Report from the Victorian Department of Families, Fairness and Housing for the Applicant’s children KU and TU;
(viii)Documents obtained through a freedom of information (FOI) request, relating to an alleged police assault in December 2003
(ix)A document produced by the Refugee Council of Australia ‘Universal Periodic Review – January 2021’; and
(x)Photographs of injuries allegedly sustained by the Applicant, along with a photograph of his prescription medication list.
(d)The Applicant’s record from Serco for his time in detention, obtained through an FOI request and filed on 6-7 September 2022.
(e)A bundle of 20 news articles relating to incarceration and detention in Australia, filed on 7 September 2022.
(f)A bundle of documents relating to proceedings in the Children’s Court of Victoria, filed on 7 October 2022.
The T docs and the ST docs include material lodged in previous Tribunal matters involving the Applicant, along with numerous letters and statements provided by the Applicant in these and previous proceedings. Where they were not included in the T docs or ST docs, they are separately listed in [17] above.
LEGISLATIVE FRAMEWORK
Under s 500(1)(c)(i) of the Act, the General Division of the Tribunal has jurisdiction to review a decision to refuse to grant a protection visa relying on s 36(1C) of the Act. That is the case in this matter (see [3] above) and I am satisfied that this application for review was made validly and within the prescribed time.
Section 65(1) of the Act relevantly provides:
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act) and was intended to codify art 33(2) of the 1951 Convention Relating to the Status of Refugees (Refugees Convention).[12]
[12] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954); see See sch 5, pt 2, item 9 of the Amending Act and Explanatory Memorandum to the Amending Act.
Article 33 of the Refugees Convention is as follows:
Prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
(Original emphasis.)
Section 36(1C) of the Act provides:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Section 5M of the Act provides:
5M Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
(Original emphasis.)
Section 5 of the Act defines “serious Australian offence” 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.
(Original emphasis.)
On 6 September 2017, the then Minister for Immigration and Border Protection issued a direction under s 499 of the Act to delegates who consider valid applications for Protection visas under s 47 of the Act and perform functions or exercise powers under s 65 of the Act to grant or refuse to grant Protection visas. This is “Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)” (Direction 75).[13] Direction 75 sets out the following Principles:
1. Australia has a right to determine whether non-citizens who present serious character or security concerns should be granted a visa, including a Protection visa.
2. The Australian community expects that the Australian Government can and should refuse to grant a non-citizen a visa, if they pose a danger to the Australian community having have been convicted of a particularly serious crime in Australia or elsewhere, or present a danger to Australia’s security.
3. It is unacceptable to grant a Protection visa to a non-citizen who is considered to present serious character or security risks to the Australian community.
4. Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia’s security or to the community, this does not necessarily mean that a person should be removed from Australia.
[13] Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017)).
Part 2 of Direction 75 explains the sequence that decision-makers are to follow when assessing Protection visa applications which raise character or security concerns. Relevantly, it states:
...
2. Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa-specific ineligibility criteria at section 36(1C).
3. Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision maker [sic] must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).
(a) Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non- refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.
4. If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.
5. The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).
The Refugee Law Guidelines[14] at para 3.26.3, relevantly provide:
[14] Department of Home Affairs, Refugee Law Guidelines (15 November 2022).
Danger to the community
The Australian courts have determined that the approach to the assessment of whether an applicant, having been convicted of a particularly serious crime, is a danger to the community has two distinct considerations:
1. whether, at some time in the past, the applicant has been convicted by a final judgment of a particularly serious crime (see 3.26.1 Convicted by a final judgment and 3.26.2 Particularly serious crime), and
2. whether the applicant is, at the time of the protection visa decision and into the future, a danger to the Australian community.
In other words, the conviction by a final judgment of a particularly serious crime alone is not sufficient to say that the applicant is a danger to the community. Nor is it sufficient to find that the applicant was once a danger. Rather, decision makers must determine whether the applicant is, at ‘present and for the indefinite future’, a danger to the Australian community.
Since the assessment of danger to the community is a consideration separate from the commission of a particularly serious crime, there is no ‘category’ of offending that will automatically result in a person being found to be a danger to the community. The assessment whether an individual is a danger to the community is one of ‘fact and degree’ to be ‘determined in the circumstances of a particular case. In WKCG and Minister for Immigration and Citizenship (WKCG), the Tribunal listed factors that assist in assessing whether a person is a danger to a member or members of the community:
Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed.
Those relevant considerations were described as pertinent by Logan J in DOB18...
In forming a view of the risk of recidivism, re-offending or relapse, decision makers can consider the factors listed in WKCG, such as mitigating and aggravating circumstances during commission of the offences and the totality of the applicant’s criminal record. As noted in Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs:
... The rehabilitation of a migrant who has suffered a conviction is not only in his interests - it is in the interests of the community of which he is a member. In the present case, the prospect of rehabilitation is the principal issue ...
...
Rehabilitation is never certain. One cannot predicate of an offender that he will not fall again, whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk ...
(Footnotes omitted.)
THE PARTIES’ CASES
The Minister
The Minister’s Statement of Facts, Issues and Contentions dated 8 August 2022 (Minister’s SFIC) made the following submissions:
(a)Considering whether or not the Applicant poses a danger to the Australian community does not involve the exercise of a discretionary power (unlike the power provided for under s 501 of the Act). If the Tribunal considers that the Applicant is a danger to the community, it must affirm the delegate’s decision.[15] It cannot balance the danger against the possible harm to an applicant if returned to their receiving country.[16]
[15] Citing s 65 of the Act and MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 at [29]-[32].
[16] Citing SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 at [27].
(b)Rehabilitation is never certain.[17]
[17] Citing Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148.
(c)
The question is whether the Applicant is a ‘danger to the Australian community’.
It is a question of fact and degree.[18]
[18] Citing WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434 at [25], [26] and [31].
(d)Principles stated by Deputy President Tamberlin in WKCG were accepted by Justice Logan in DOB18 v Minister for Home Affairs[19] as being pertinent to a decision made under s 36(1C) of the Act.
[19] [2019] FCAFC 63.
(e)In DOB18 Logan J stated that ‘danger’ means ‘present and serious risk’ (at [83]) and that that it must be so into the indefinite future (at [75] and [88]). That is, the Applicant must be shown to be presently and into the indefinite future a risk and that the risk must be serious. Logan J’s construction of the term ‘danger’ was adopted by the Tribunal in MHCZ and Minister for Home Affairs[20] at [35].
[20] [2019] AATA 4259.
(f)It is considered sufficient for “danger” to be established if there is a real or significant risk or possibility of harm to one or more members of the Australian community.[21]
[21] Citing SQDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2980; HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1967.
(g)The Applicant has been convicted of a particularly serious crime. The Applicant’s convictions for armed robbery and make threat to kill are offences involving violence and are punishable for maximum terms of not less than three years. The maximum sentence for armed robbery is imprisonment for 25 years and the maximum penalty for make threat to kill is 10 years.
(h)The Applicant has an extensive criminal record, having committed a series of violent offences between 1999 and 2008, before committing his most serious offending in late 2012.
(i)In relation to the risk of re-offending, the Applicant has a long history of violent offending and has been incarcerated on four occasions.
(j)The Applicant was warned in January 2008 about the potential for his visa to be cancelled should he continue to offend, but he continued to offend.
(k)While the Applicant now claims that he has been rehabilitated, he remains in detention and whatever benefit he has derived from the rehabilitation courses attended has not been tested in the community. His three previous periods of imprisonment were followed by instances of further offending, and the Tribunal should take a cautious approach to assessing the Applicant’s claims to be a changed man, given his criminal history and his failure to take heed of a warning given to him by the Department in 2008 about his visa potentially being cancelled if he re-offended.
(l)The Tribunal in reviewing and affirming the decision not to revoke the cancellation of the Applicant’s visa in July 2019 (see [12] above) conducted a detailed analysis of the risk to the Australian community. The Tribunal found that the Applicant had a “propensity for violence and a trend of increasing seriousness”[22] and that the Applicant’s “offending cannot be considered impulsive, isolated or short-lived. It is persistently violent offending, reflective of someone with little respect for Australia’s law enforcement framework”. The Tribunal did not accept that the Applicant was an acceptable risk of reoffending.
(m)In relation to mitigating circumstances, the Applicant has experienced difficulties throughout his life, however, these difficulties do not mitigate what has been a protracted violent history. Judge Maidment in sentencing the Applicant in 2013 did not accept that the Applicant’s personality issues and mental impairments reduced the Applicant’s moral culpability for the offences.
(n)Similarly, the Tribunal in its decision in July 2019 (see [29(l)] above), while acknowledging the difficult aspects of the Applicant’s life, found that they did not diminish the seriousness of the Applicant’s prolonged violent conduct or his risk of recidivism.
(o)Aggravating circumstances of the Applicant’s offending, and indicative of the danger which he poses to the community, are that his offending has occurred against vulnerable persons and police officers and that he appears to have been undeterred by detention.
(p)Overall, there is a real risk of further offending of a like kind based on the pattern of the Applicant’s behaviour over a lengthy period, his inability to constrain his actions whilst in detention and the lack of protective factors leading to the conclusion that the Applicant is a danger to the community.
[22] T docs/322.
The Applicant
There was no document filed by the Applicant which identified itself as a Statement of Facts, Issues and Contentions. Directions were made in June 2022 for the filing of statements of facts, issues and contentions. In accordance with those directions, the Minister’s SFIC was filed on 8 August 2022. On 6 and 7 September 2022 the Applicant filed various documents and on 14 September 2022, a bundle of documents described as the Applicant’s Bundle of Documents, was filed by the Minister. This bundle included the documents filed by the Applicant on 6 and 7 September 2022.[23]
[23] See above para [16].
Many of the documents filed by the Applicant and included in the Applicant’s Bundle, are not relevant to the matters that I have to determine as identified in [4] above. Many of these documents appear to have been prepared for court proceedings, for submission to the Department on the issue of revocation of the cancellation of the Applicant’s visa or for the previous applications to the Tribunal. As a result, many of these documents address a range of issues, some of which may have been relevant to those previous proceedings/applications, but which are not relevant to the issue to be determined by me, namely, whether the Applicant is a danger to the Australian community for the purposes of s 36(1C)(b) of the Act. I have reviewed all of the documents filed by the Applicant and refer to them or the information contained in them insofar as they are relevant to my determination.[24]
CONSIDERATION
[24] See Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [27] per Rangiah J; KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1229 at [52]-[55].
Has the Applicant been convicted by a final judgment of a particularly serious crime?
The Applicant has been convicted of armed robbery, make threat to kill and multiple assaults including assault police, recklessly cause injury, intentionally cause injury and intentionally cause serious injury. Section 5M of the Act defines a “particularly serious crime” as including “a serious Australian offence” (see [24] above). Section 5 of the Act defines a serious Australian offence as including an offence against a law in force in Australia where the offence involves violence against a person, and which is punishable for maximum term of not less than three years (see [25] above).
On 29 May 2013 the Applicant was convicted in the County Court of Victoria, on his plea of guilty, of armed robbery and making a threat to kill for which he was sentenced to terms of imprisonment of seven years and three years respectively.[25] At the same time the Applicant was convicted of prohibited person carrying a firearm (sentenced to three years’ imprisonment) and assault with weapon (shotgun) (sentenced to imprisonment for six months)
[25] T docs/279.
The Applicant appealed the sentences and on 13 August 2013 the Supreme Court of Victoria Court of Appeal reduced the seven-year term of imprisonment for the armed robbery to six years. The maximum sentence for armed robbery is 25 years imprisonment and for making threat to kill 10 years imprisonment.[26]
[26] T docs/292.
The offences listed are offences which involved violence against a person, and which are punishable by imprisonment for a maximum term of not less than three years. They are, therefore, serious Australian offences and are, accordingly, particularly serious crimes for the purposes of ss 36(1C)(b) and 36(2C)(b)(ii) of the Act.
I find that the Applicant has been convicted by final judgment of a particularly serious crime.
Is the Applicant a danger to the Australian community?
There are two leading, and possibly conflicting, authorities on the interpretation of s 36(1C)(b) of the Act, namely WKCG and DOB18. Deputy President Tamberlin’s decision in WKCG is most often cited as the preferred statement of the meaning of “danger to the Australian community”. I note that the Refugee Law Guidelines now refer to both WKCG and DOB18 (see [28] above). Paragraph 3.26.3 of the Refugee Law Guidelines, citing [88] of DOB18, directs that “... decision makers must determine whether the applicant is, at ‘present and for the indefinite future’, a danger to the Australian community”. The factors set out in WKCG for making that determination are also replicated in general terms in the Refugee Law Guidelines. DP Tamberlin said in WKCG:
[25] The question of whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
[26] Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed.
The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
...
[31] The language of the Article directs attention to the expression “danger”.
This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future.
The determination of this must be made by reference both to past circumstances and, as Brennan J pointed out (Salazar at ALR 38; ALD 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable”.
Until the judgment in DOB18, the legal position was reasonably clear. As Logan J noted at [76] in DOB18:
In Australia, an influential case in relation to the subject of “danger” as used in Art 33(2) of the Refugee Convention and now in s 36(1C) of the Act has proved to be the Administrative Appeals Tribunal case, WKCG...
As his Honour noted, various aspects of DP Tamberlin’s approach in WKCG have been followed in subsequent cases. At [77] of DOB18 Logan J noted that:
SZOQQ was determined by the Administrative Appeals Tribunal on the basis, promoted by the parties, that WKCG was correctly decided, as it was before the Full Court. But the Full Court expressly left open the correctness of WKCG.
At [78] of DOB18 Logan J observed that:
... it be accepted that considerations to which the Deputy President adverts at [26] are pertinent. In EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536 (EWG17), Collier J referred to WKCG with apparent approval but her Honour’s approval (at [52]) expressly related to the proposition (found in WKCG at [25]), that “danger” must be determined in the circumstances of a given case.
(Original emphasis.)
At [80] of DOB18, Logan J then noted:
My own further researches have disclosed that, also last year, WKCG was additionally referred to in this Court by Charlesworth J in AFY18 v Minister for Home Affairs [2018] FCA 1566 and by Siopis J in Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27. In neither case was there any need to consider the correctness of all that was said in WKCG about “danger”.
As indicated by Logan J, the Tribunal has, on numerous occasions, adopted the approach taken by DP Tamberlin in WKCG.[27] As noted above, that approach is also adopted in the Refugee Law Guidelines.
[27] See RWDX and Minister for Home Affairs [2019] AATA 123; MVLW; HSCK and Minister for Home Affairs [2019] AATA 4392; SQDD; MQHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 119; XFKR and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 95; CCYW and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4452.
I read Logan J’s judgment in DOB18 as saying that the particular aspect of DP Tamberlin’s decision with which his Honour had an issue, is the Deputy President’s test for “danger” as set out in [31] of his decision, namely that “... it will be sufficient if there is a real or significant risk or possibility of harm ... It is not necessary to establish that there is a probability of a real and immediate danger of present harm”. (Original emphasis.)
Logan J’s view at [83] and [85] of DOB18 was that:
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that [sic] just “risk”.
...
Within the Act, s 5H(2) in the definition of “refugee” can be seen to be responsive to Art 1F in the same way that s 36(1C) can be seen to be responsive to Art 33(2). In Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745, at [16], the United Kingdom’s Supreme Court held that Art 1F of the Refugee Convention should be interpreted narrowly and restrictively, because of the potential consequences of excluding someone from the application of that convention. That same “potential consequences” rationale should, in my view, inform the construction of s 36(1C) of the Act.
In HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[28] the Tribunal did not consider that there was any necessary inconsistency between WKCG and DOB18 as WKCG did not equate “danger” to mere “risk”, but rather it would be considered sufficient for “danger” to be established if there is a real or significant risk or possibility of harm to one or more members of the Australian community.
[28] [2020] AATA 1967
The potential conflict between WKCG and DOB18 was considered by Collier J in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[29]
Her Honour said:
34. The applicant submitted that there is conflict in legal principle between the statements of Tamberlin DP in WKCG and Logan J in DOB18. The applicant also submitted that the Tribunal at [63] of its reasons misconceived a false equivalence and false coherence between these authorities…
35. The applicant submitted that, to the extent that the Tribunal defined “danger to the community” by reference to the test articulated in WKCG rather than by Logan J in DOB18, the Tribunal erred as a matter of law.
[29] [2022] FCA 514.
Her Honour then referred to Kerr J’s analysis of the concept of “danger to the Australian community” for the purposes of s 36 (1C)(b) of the Migration Act in EBD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[30] at [28] in which his Honour said:
The expression “danger to the Australian community” is to be construed in its context, but has no technical meaning. The phrase is used in both s 36 and s 501(6)(d) of the Act, albeit in slightly different contexts. The language is that of ordinary English. Whether it is satisfied involves a close consideration of the whole of the relevant facts and circumstances as they present today. I am not sure that there is any one test as such. The view that a person is a danger to the Australian community can be held in a variety of circumstances. Prior criminal conduct is obviously relevant. The degree of risk of recidivism is obviously relevant, and that requires attention to his motivation not to re-offend. What rehabilitation a person has undergone is obviously relevant. When his last offending occurred is relevant. The views of those who know him well can be relevant.
[30] [2021] FCA 334.
Having cited Kerr J’s above comments, Collier J said:
37. In my view there is considerable force to the observations of Kerr J in respect of the concept of “danger to the Australian community” for the purposes of s 36 (1C)(b) of the Migration Act. As his Honour said, the language is that of ordinary English, has no technical meaning, and ought to be construed in its context.
38. Notwithstanding the detailed submissions of both Counsel in the present application, I respectfully note that relevant observations in WKCG and DOB18 were both dicta, could not be said to conclusively define the meaning of “danger to the Australian community” for the purposes of s 36 (1C)(b), and in my view do no more than provide guidance in respect of the ordinary meaning of the words in that section.
Her Honour then referred to dictionary definitions of danger and said:
41. Section 36 (1C)(b) of the Migration Act refers to danger “to the Australian community”. The section does not require there to be any specific level of danger to the Australian community from the visa applicant. The fact that s36(1C)(b) is referable to the visa applicant having been convicted by a final judgment of a particularly serious crime suggests however that, in order for s 36 (1C)(b) to be enlivened:
· there must be a real risk of exposure to harm in the Australian community from the visa applicant;
· the harm the Australian community would be exposed to by the visa applicant would be proportionate or referable to the “particularly serious crime” for which the visa applicant had been convicted; and
· the Minister must have reasonable grounds for forming that view.
42. As Tamberlin DP observed in WKCG at [25], the question whether a person constitutes a danger to the Australian community is one of fact and degree. This proposition is not in dispute. However at [31] it was further observed that in assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community.
43. Justice Logan in DOB18 at [83] opined that, read in context, “’danger’ in s 36 (1C)(b) means a risk that is present and serious”. His Honour continued:
83. ... To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”
44. In the present case after referring to both WKCG and DOB18, the Tribunal at [64] found that in order for a person to be a “danger” there must exist, at the time of the decision of the Minister, a present risk which is “real” or “significant” or “serious”, and which is neither remote nor fanciful, that the person will cause harm of a sufficiently serious nature in the present or future.
…
46. I agree with the Tribunal’s articulation of principle at [64] in respect of whether the applicant was a “danger to the Australian community”. I do not consider it to be inconsistent with comments of Logan J in DOB18, rather I consider the Tribunal’s statement to be an accurate statement of the law. I do not consider that there is any material conflict between the legal principles as explained in WKCG and Logan J in DOB18. ….
In LKQDv Minister for Immigration,[31] Jackson J held that the standard does not rise to the level of “very serious danger”. In relation to DOB18, Jackson J noted at [62]:
To the extent that Art 33(2) is an exception to the principle of refoulement, s 36(1C) can similarly be characterised as an exception to the principles of protection reflected in s 36(2). None of that requires any departure from the explanation of the ordinary meaning of s 36(1C) which Deputy President Tamberlin gave in WKCG. I note that Logan J, sitting on the Full Court, has recently held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’ and has suggested that may be inconsistent with WKCG: DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [83]. But even the standard suggested by his Honour does not rise to the level of ‘very serious danger’ urged on behalf of the applicant.
[31] [2019] FCA 1591; (2019) 167 ALD 17.
In relation to whether consideration of s 36(1C) of the Act requires a balancing exercise, Jackson J at [63] of his decision in LKQD found:
... the decision in SZOQQ is authority for the proposition that Art 33 requires no balancing between the undesirability of refoulement and the danger to the Australian community that an applicant may pose. SZOQQ was overturned in the High Court, but on a different ground that had not been put to the Full Court: see SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12; (2013) 251 CLR 577 at [16]. The Tribunal in the present case committed no error in following the Full Court in SZOQQ. The published opinion of the UNHCR in the note referred to cannot change that.
I am satisfied that the relevant considerations in assessing whether the Applicant is a danger to the community are those identified in [26] of DP Tamberlin’s decision in WKCG (see [36] above), which are adopted by the Refugee Law Guidelines and referred to in DOB18 as being pertinent. This is consistent with Collier J’s comments in DMQ20 and her statement of the test at [44] and [46] of her judgment (see [48] above). Each of the factors identified by DP Tamberlin in WKCG is considered below. I also address Logan J’s interpretation of the meaning of “danger to the Australian community” in [83] of his judgment in DOB18 (see [43] above) and the comments of Collier J in DMQ20 on the same issue.
Nature and seriousness of the crimes committed
For the reasons set out in [32]-[36] above, I have found that the Applicant has been convicted of a particularly serious crime, namely, armed robbery and make threat to kill. The facts of those offences and other relevant considerations were set out in the sentencing remarks of Judge Maidment on 29 May 2013 as follows:[32]
[32] T docs/268-280.
3. … [the Applicant] pleaded guilty to an indictment charging you with armed robbery, making threats to kill and possessing or carrying or using a firearm whilst a prohibited person. You, too, have admitted a number of prior convictions and court appearances.
…
5. You [the Applicant] have also pleaded guilty to a number of related summary offences, unlawful assault with a shot gun in the course of carrying out the armed robbery on the indictment, possessing cartridge ammunition without a license, that is the shotgun cartridges, using a drug of dependence, namely heroin, unlicensed driving of a motor vehicle, using threatening words in a public place and dealing with properties suspected of being the proceeds of crime, namely the shotgun, the subject apparently of a theft from property in Lalor.
…
12. … According to the prosecution summary, which is I note not in dispute, that the two of you met at the Turfside Tavern in Moe. You [co-accused], essentially, hitched a ride to Sale with [the Applicant] and you left Moe in a vehicle driven by him. [The Applicant] was not the holder of a driver's license and he happened to have in the boot of his car a shotgun and two shotgun shells.
13. [The Applicant] happened to have in his car a large knife and together you hatched a plan to carry out the armed robbery which you perpetrated against the unfortunate attendant at the service station at Sale.
14. Both of you entered the shop area. You threatened the attendant. You, [the Applicant], with the shotgun and you, [co-accused], with the knife. A threat was made to kill him and you stole money from the till and made good your escape.
15. You, [the Applicant], went on to Lakes Entrance which was your ultimate destination. Apparently you had travelled there or were intending to travel there to attend a funeral on that day. You hid the shotgun in the ceiling of your ex-partner's house and left other items on the dining table, including some of the clothing which you wore during the course of the armed robbery.
16. … You, [the Applicant], were arrested and interviewed by police. Although the summary says you made full admissions to the armed robbery and that strictly is true. It is clear you did not tell the truth, the whole truth, about the armed robbery to the police at that time.
17. You told the police that the shot gun was not loaded and although there were shells that would have fitted and could have been used in the gun that had been in your possession there is no evidence upon which I could find that the gun was loaded at the time the armed robbery was taking place and I proceed to sentence you on the basis that it was not loaded.
18. Whilst the police were awaiting to transport you to the Melbourne Custody Centre you threatened the informant in the matter saying, "When I get out in seven or 10 years you had better be on holidays."
19. … A number of these matters are serious offences, no more so of course than the armed robbery which you carried out at the service station at Sale.
20. Both of you recognise that is a very serious offence and I accept that each of you are now remorseful for your conduct. However, and I think you both appreciate this, pointing a shot gun and waving a knife at a service station attendant in the early hours of the morning when they are totally unprotected would have been an absolutely terrifying experience for that individual.
21. … I think it is reasonable to infer that the effects of your crime will have a very lasting effect upon him. I think both of you will appreciate that and both appreciate, I think, now that it is a very serious offence and one which leaves the court absolutely no option other than to impose a significant term of imprisonment upon you.
…
36. … It is clear that you [the Applicant] have had your difficulties also. You were brought up in, what I might respectfully call, a traditional upbringing in Samoa. You came to Australia, aged 19, as a talented rugby player. Although I think you started in Melbourne you eventually went to West Tigers in Sydney, presumably as a player. I do not know whether you ever played in first grade or not but you were obviously thought to be sufficiently talented to be on their pay roll.
…
38. … I accept that you are remorseful for what you did now. You did not give that impression when you were issuing your parting shot to the informant when you were on your way to prison but nevertheless, I accept, that on reflection you are now remorseful.
39. … psychological report of Mr Bob Ives, psychologist, dated the 18 April of this year and also some documentation which suggests and/or supports the proposition that you have attempted to address a number of the underlying problems that you have - obviously, anger management and so on and so forth - whilst you have been in prison on remand. All of that would suggest that you are taking very seriously your rehabilitation.
40. There have been a couple of assay results which would suggest that you had been drug free since you have been in prison on remand. Again all that bodes quite well for your rehabilitation.
41. The psychological report quite helpfully sets out a deal about your history, your more recent history and your history of alcohol and drug abuse and your employment history, including the period during which you worked as a security guard or bouncer at a hotel in Melbourne, and ultimately, moonlighted I think as a security guard for drug traffickers during drug deals. That does not do you a great deal of credit but is nevertheless consistent with the proposition that you, yourself, were involved in drug abuse and were in a bad place during some of that period.
42. You now are in a relationship about which you have high hopes; that is your relationship with [S]. She has three children by a previous relationship, one of whom an 18-year-old was still living with her.
43. You will need some help I think but it does not seem to me that you were as deeply involved in drug abuse as [co-accused] and I think you have got every chance of dragging yourself out of that particular pit.
44. I should perhaps mention one other thing before I make this comment. Although you have a number of prior convictions and court appearances and you are clearly a person who has committed offences of violence in the past you have been out of trouble essentially since 2008. For a person of your age, you are now aged 36, almost 37 that I think is a positive sign. Although clearly you have been dabbling in drugs and the drug trade in that period that you have stayed out of trouble is a positive sign.
45. What you were doing in that car with a shotgun and a knife on your way to a funeral at Lakes Entrance is a matter about which I really do not care to speculate. That you so readily fell into the plan to carry out the armed robbery on the service station is a worrying sign. But nevertheless I think I have to pay tribute to the period during which you stayed out of trouble between 2008 and the latter part of last year.
…
47. … I think you do have reasonable prospects of rehabilitation and I propose to sentence you accordingly.
The facts of the offence were slightly expanded by the Court of Appeal as follows:[33]
7. At about 3:30 am the applicant pulled the vehicle up at the United Petrol Station in Sale, out of view of the CCTV cameras on the east side of the building. [The Applicant] retrieved the shotgun from the boot of the car and there was further discussion about the armed robbery. [Co-accused] then walked into the shop section of the business. She requested a pen and paper to write down a phone number. She spent some time writing on the paper. [The Applicant] entered the shop. [Co-accused] handed the piece of paper to [the Applicant] and they both then left the shop. [The Applicant] and [co- accused] then walked back to the vehicle and put on extra items of clothing. [Co-accused] put on a shirt, cap and bandana belonging to the applicant in an attempt to conceal her identity. [The Applicant] put on a large hooded jacket and used a bandana to cover his face.
8. [The Applicant] and [co-accused] then re-entered the store. [The Applicant] was carrying the shotgun. [Co-accused] was carrying the knife. They went to the counter and demanded cash from the register. [Co-accused] slashed the knife on the counter and [the Applicant] pointed the shotgun directly at the attendant, [GS] (summary charge 4 - assault with weapon).
9. [GS] pressed the duress alarm. Both [the Applicant] and [co-accused] said, ‘Don’t press the button. Give us the money. We are serious we can kill you’ (charge 1 - armed robbery; charge 2 - threat to kill; charge 3 - prohibited person in possession of unregistered firearm). [Co-accused] was doing most of the talking at this point. [The Applicant] pointed the gun straight at [GS] and said, ‘Give me the money.’ [GS] gave him 5 cent and 10 cent coins.
[The Applicant]said, ‘No I want the other money’. He reached over and grabbed money from the cash register. [Co-accused] told [GS] to give her money or she would stab him. She also leaned over and helped herself to money from the cash register.
10. [The Applicant] and [co-accused] collected about $500 from the robbery.
[33] T docs/283-284.
The Court of Appeal (per Osborn JA) reduced the Applicant’s sentence, but noted at [41]:[34]
Nevertheless this was a very serious armed robbery involving the terrifying use of both a shotgun and knife. It is true, as counsel for the applicant submitted, that the shotgun was neither discharged nor loaded and that the victim was not injured but the offending comprised a direct, violent and overwhelming joint confrontation by two offenders, each apparently heavily armed.
[34] T docs/293.
The Applicant made a number of written statements about the armed robbery. One made by the Applicant on 21 May 2021 included the following:[35]
The night of the robbery I was very much out of character. I grew up with violence, it was always around me in Samoa, but I hate it, even more now. That night was kind of a cascade of bad events starting with the drug social life that was a part of my work place where I was expected to put money back into the business in this way. It’s not an excuse but was a part of the culture of my workplace. When my wife at the time called me to say my brother-in-law had died in a bike accident and her uncles funeral was the next day- which I already knew about- I felt overwhelmed with emotions. When I helped the girl, [co-accused], with a lift from Moe to Sale, it was the beginning of the worst night of my life. We did the most stupid thing and that’s why my life ended up so miserable. That act of violence and terror haunts me and now I mentor my youngest peers about things like stand over tactics that I learnt about in one of my classes whenever I can.
[35] T docs/242.
In a separate statement dated 27 May 2021 about the threat to kill conviction, the Applicant said:[36]
I understand the seriousness of a threat to kill, and through my own reflection and many classes that have helped me learn to put myself in other people’s shoes, I know I would never even think to make a threat that severe ever again.
…
When I think about what I said and my actions, I think about how I would feel if someone made that same threat to me today. I would be scared to death, worried and would hope they were not serious. My whole body would be tingling and hot, my chest would feel tight. I would feel like I have no control over the threat and I would feel hopeless and defenceless. I would feel extremely fearful, I would also be confused, because no one deserves to feel that way and be told they are going to be killed and I would feel angry that someone else thinks that they can take my life into their hands.
I didn’t mean to say those words, my anger at the time was out of control and I was feeling hopeless and sad myself. I thought those words would help me, I had no intention to act on them at all, I only said them to give me more power in the heat of the moment.
[36] T docs/240.
The Applicant was cross-examined on his criminal record, particularly his convictions for offences involving violence and interactions with the police. The first such conviction was two charges for assault police/person assisting police in 2001. The Applicant had provided a statement (apparently prepared in June 2021) headed “Addressing my criminal history” which set out what he said were the circumstances of that offence and others.[37] The material part of the Applicant’s account in that statement was that:
The police pulled me over and they asked for my name, I said [omitted] (my nickname) and I got out of the car to reach for my wallet in my back pocket. They started yelling things at me and jumped on me and started spraying me, they pinned me on the ground and used pepper spray on me because I was yelling at them to get off of me…. one cop was handcuffing me behind my back and threw me in the van, it was hard to breathe, it was a one minute drive to the police.
[37] T docs 222-5.
The Applicant was taken by counsel to the police record of that incident which was materially as follows:[38]
[The Applicant] refused to state his name and address and refused to produce a licence. He further refused a preliminary breath test. He was warned and subsequently arrested. He was escorted to the rear of the van where he became violent and resisted police. A struggle ensued during which Constable Weston was dragged into the rear of the van after [the Applicant] grabbed the member’s ASP baton. The member held on to his ASP as he was dragged into the rear of the van where the struggle continued with the member. Police requested backup, whereby the WHK O’Grady went to assist the van group. [The Applicant] also attempted to wrench Weston’s firearm from the utility belt, but the member was able to prevent him doing this. At the same time, [the Applicant] had Weston by the throat. After disengaging him and realising that the offender had a hold of the baton, OC spray was deployed into the rear of the van, which initially no effect as [the Applicant] covered his face with his jacket. Subsequent sprays were effected and [the Applicant] was placed into the rear of the van, taken to the sally port 30 metres away and given immediate aftercare. He was taken from the van and given further aid and water. [The Applicant] continued to make threats towards members.
[38] ST docs/23.
The Applicant was asked about the significant difference between his account and that of the police. The Applicant’s response was that the police “write anything down that they want”.[39] The Applicant agreed that he did not contest the police version of events when they were read to the court at the time that he pled guilty.
[39] Transcript at 37.
The Applicant was then asked about the next conviction which was for recklessly cause injury for which he was convicted in October 2002 and for which he received a community-based order for 12 months to perform 150 hours of unpaid community work. The Applicant was again taken by counsel to the police version of the events that gave rise to that charge and conviction.[40] The police record was to the effect that the Applicant had been drinking at a hotel with friends and had become enraged when someone had borrowed his car. He returned home and began smashing the contents of the house. The Applicant then went outside and encountered the victim whom he punched and pushed to the ground where he kicked him causing bruising/swelling to the victim’s head/neck and back area.
The Applicant’s evidence was that he could not remember anything about that incident.[41]
[40] ST/23.
[41] Transcript at 39.
Next, the Applicant was taken to the first of the convictions for which he received a term of imprisonment, the convictions in March 2004 for recklessly cause injury, resist police (3 charges), unlawful assault (3 charges), make threat to kill and act in a disruptive manner. The Applicant was also at that time convicted of more minor offences for which he received fines. His evidence was that he did “not really” remember committing the offences and, when asked whether being sent to prison had an effect on him, his response was “No, I was young and dumb. I can’t - yes, I was just - I was just young and dumb at the time”.[42]
[42] Transcript at 39.
Notwithstanding the Applicant’s evidence at the hearing that he could not really remember anything about the offences for which he was convicted and sentenced to imprisonment in March 2004, the Applicant had provided a detailed account of the incident, which occurred in December 2003, in the document headed Addressing my criminal history.[43] This incident, again involving alcohol, was described by the Applicant in that document as follows:
I was angry about what [former partner] was going to do with the kids because I thought she was going to try and drive them and she was yelling at me because she wanted to do what she wanted to do. We were having an argument and someone else got involved, police arrived, and they sprayed me down, pinned me on the ground and handcuffed me. I don’t remember where exactly I bit the cop but their arms and hands were around my neck and I couldn’t breathe so I just bit down so that they would let me go.
[43] T docs/223.
The Applicant confirmed that the account of the incident set out in that document was accurate.[44] The Applicant was then taken to his statement in the document that:[45]
This was my first sentence of imprisonment. It made me realise that when I get drunk and I can’t control my emotions anymore, it gets in the way of me looking after my boys.
[44] Transcript at 40.
[45] T docs/223.
It was pointed out to the Applicant by counsel that that, despite that statement, the term of four months’ imprisonment did not have a positive effect because the Applicant kept offending. His response was “Yes, I was yelling [young] at that time, sir”.[46]
[46] Transcript at 40.
In June 2004 the Applicant was convicted of intentionally causing serious injury, intentionally causing injury, assault police on duty, criminal damage (intent damage/destroy) and common assault for which the Applicant was sentenced to an effective term of 12 months’ imprisonment. The only reference to an incident in 2004 (the convictions in March 2004 referred to in [61]-[64] above related to an incident in December 2003) in the Applicant’s document addressing his criminal history, was a single paragraph at the foot of T docs/223, in which the Applicant referred to getting into a fight with security at the Moe Tavern when he tried to retrieve a jacket that he had left inside.
At the hearing, however, the Applicant referred to the incident at the Moe Tavern (possibly the Mid-City Tavern in Moe) when he tried to retrieve his jacket as being in 2012 which, according to the Applicant, resulted in him receiving a $800 fine.[47] Notwithstanding the Applicant’s evidence that this incident occurred in 2012, I think that it is likely that the Applicant has the year wrong as he was convicted of unlawful assault and fined $800 in December 2004. There was no conviction in 2012 or 2013[48] which would, on its face, relate to an incident of the type described by the Applicant as having occurred in 2012.
[47] Transcript at 41.
[48] T docs/264.
In October 2005 the Applicant’s earlier suspended sentence was reinstated because of the Applicant’s breach of the terms of his suspended sentence with the Applicant being required to serve an aggregate of 165 days in prison.
The next conviction for which the Applicant received a term of imprisonment was in December 2005 when the Applicant was convicted of recklessly causing injury and unlawful assault for which he received an aggregate sentence of three months’ imprisonment. There is no reference to these convictions in the Applicant’s document addressing his offending.
In June 2007 the Applicant was again convicted of intentionally causing injury, two counts of resisting police and one count of unlawful assault and sentenced to seven months’ imprisonment. Counsel read to the Applicant his account of this incident as set out in his document addressing his criminal history as follows:
In 2006, I believe one time the police tried to arrest me. They used pepper spray and I had it all over my body and my head. When they took me in, they hosed me down to get rid of the spray and I was left freezing. I first took my clothes off and asked for a dry overall jumpsuit, monkey suit that they normally provide when asked. This time the police officer didn’t give me one but my wet clothes were making me really cold. I was angry about this and then started acting stupidly because I thought they would give me some dry clothes if I did.
The Applicant was then read the police account[49] of this incident as follows:[50]
At about 4.40 in the morning on 1 October 2006 the initial victim, [Victim], was crossing Surf Street when [the Applicant] has attacked him swinging punches and hitting him in the head and back. [Other Party] has come to assist [Victim] but has then been punched once, two times in the head as well. Police have arrived at almost the same time and deployed OC spray on all three, but mainly the offender. They have all suffered the effects but [Victim] was now unconscious on the ground due to one last hit from [the Applicant]. Police have attempted to arrest [the Applicant] and was told to get on the ground. He’s then taken swings at Officer Cronk and he has ducked out of the way.
[49] ST docs/210.
[50] Transcript at 42.
The Applicant’s evidence was that he could not really remember the detail of the incident.[51] Counsel then continued reading the police report of the incident as follows:
[The Applicant] has then been given aftercare at the police station, during which he has made threats towards Cronk and has then drew back on phlegm and spit - to spit on Cronk. Cronk has then struck him in the mouth and ended up with saliva and spit on his hand. He has then been forced by Little and Cronk to charge - to the charge counter where he was searched and lodged and given further aftercare in cells. During his time in the cells, he was stripped off naked and masturbated to the cameras. He has then urinated on the walls, door and floors and pressed the duress button constantly.
[51] Transcript at 43.
The Applicant confirmed the accuracy of the police account.
On 11 February 2008 and 5 February 2010, the Applicant was convicted of intentionally causing injury and sentenced to terms of imprisonment of seven months and five months respectively, both being wholly suspended. The circumstances of the offence which resulted in the conviction in February 2008 were read to the Applicant:
You’ve approached the victim and begun arguing, [the Applicant] has thrown a punch at the victim with a right clenched fist, striking the victim on the face, [co-accused] has then grabbed the victim and thrown him on the road, [co-accused] has sat on the victim’s head, [the Applicant] has stood over the victim’s chest and thrown four right clenched fists at the victims head. [The Applicant] has stood over the victim and stomped on his head.
Asked whether he agreed with that summary, the Applicant’s evidence was that he “didn’t do anything like that”.[52] His evidence also was that he did not remember receiving the five months suspended sentence for that offence.
[52] Transcript at 45.
In relation to the 2010 conviction, the Applicant’s evidence was that he remembered that offence, that the victim was 81 years old and that he had pled guilty. His evidence was, however, that he “didn’t do anything”.[53] The Applicant’s evidence was that he was working at the victim’s house and that the victim was standing in his underpants in front of his bedroom door, shouting at the girl next door. The Applicant’s evidence was that he told the victim to go back to sleep and pushed him back into his room, “and that is why he had bruise [sic] to his face and his arm”. His claim, again, was that the police had inaccurately reported the facts to the court.
[53] Transcript at 45.
Mr Gerrard also referred the Applicant to police reports that reported the Applicant committing family violence and the fact that there had been and were currently active violence restraining orders against the Applicant. The Applicant’s evidence was that these related to arguments with his then partner. He was then taken to a police incident report from December 2010,[54] which reported the police being called to the Applicant’s home and him being armed with a machete. The following exchange took place:[55]
COUNSEL: … it says you were reportedly armed with a machete, threatened to slice up cops if they come here, broke down a toilet door behind which [former partner] was sheltering and hit her about 10-15 times in the head. Why is that funny?
APPLICANT: It’s not funny but it’s funny use the word hit 15 times, you know what I mean, this – if I hit her 15 times that means she would be dead, or she would be in a coma, or I don’t know, the way they make the statement because the parents the – because we have an argument with the parents and I pushed them and I told the mother go away from my house and, you know, we have enough of them. And yes, I just pushed the mother out and that’s it.
COUNSEL: So you don’t accept there was any incidents of domestic violence?
APPLICANT: I didn’t hit her 13 times. I mean, (indistinct) hit her in the head. I am not – I didn’t hit her in the head 15 times.
COUNSEL: Did you hit her at all?
APPLICANT: No, I didn’t. Because her brother was live with us [sic] and her brother and girlfriend always have a problem and that’s a toilet door, they always – it’s not hinged properly because didn’t fix properly, so always fall down [sic] and this was, you know, happy that night because yes, her parent, I kick her parent out because yes, something we disagree about with the old man. And I didn’t use the machete to cut any police or say anything like that, I didn’t – because no police was [sic] there that night.
[54] Also referred to in the Tribunal’s decision of 31 July 2019 on the review of the decision under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s visa; T docs/311.
[55] Transcript page 47.
The Applicant’s evidence is not consistent with the evidence that he gave to the Tribunal in 2019 which, at [58] of the decision in that application, records his evidence to be that, while he denied hitting the woman so many times, he “can’t remember what happened that night”.[56]
[56] T docs/312.
The Applicant was sentenced to a term of imprisonment of 14 days on 22 April 2013 for resist police and possess drug of dependence. The next convictions for which the Applicant received terms of imprisonment were those dealt with by the County Court of Victoria in May 2013 and the Supreme Court of Victoria in August 2013 which resulted in the Applicant being sentenced to terms of imprisonment totalling eight years, seven months and fourteen days which, with concurrent sentences, resulted in an effective total term of imprisonment of seven years and six months (see [9] above).
The Applicant was cross-examined on the armed robbery. His evidence of the circumstances of the offending was to the effect of the descriptions by Maidment J and Osborn AJ as set out in the sentencing remarks quoted at [53] and [54]-[55] above.
It is, in my view, indisputable that the crimes that the Applicant has committed are very serious. The armed robbery and threat to kill for which the Applicant received a total effective term of imprisonment of seven years and six months are obviously the most serious of the Applicant’s offending. However, the other numerous serious offences of which the Applicant has been convicted which have attracted terms of imprisonment are, in their own right, serious.
The length of the sentences imposed
The terms of imprisonment to which the Applicant has been sentenced are set out in the table in [9] above.
While in each case, the sentences imposed may be towards the lower end of the scale of possible sentences, the final sentence of seven years and six months is very significant. This, coupled with the cumulative effect of the multiple prior sentences of imprisonment, is indicative of the seriousness of the offending as a whole.
Mitigating or aggravating factors
While DP Tamberlin at [26] of WKCG identified “mitigating or aggravating circumstances” as being a potentially relevant consideration, it is not clear to what factor or factors the mitigating or aggravating considerations are to be applied. The concept of mitigation, that is the lessening of force or intensity or moderation of severity,[57] is readily understandable in the context of assessing the offender’s moral and criminal culpability for the purposes of sentencing. However, how principles of mitigation would apply in assessing whether an individual is a danger to the Australian community is less obvious, particularly when DP Tamberlin identified the length of the sentences imposed (which would take into account the mitigating and aggravating factors of an applicant’s offending) and recidivism and the likelihood of relapsing into crime as separate considerations.[58] As the role of the Tribunal is to assess whether the Applicant is a danger to the Australian community, not the Applicant’s criminal or moral culpability for his offending, I take DP Tamberlin’s reference to mitigating circumstances to be a reference to circumstances which are likely to lessen the severity of the Applicant’s offending as it impacts or could impact the community or which are likely to reduce the likelihood of the Applicant re-offending.
[57] Macquarie Dictionary (online at 15 May 2023) ‘mitigate’.
[58] WKCG at [26]; see [37] above.
In that regard, Maidment J made the following observations in sentencing the Applicant:[59]
46. I regard the proposition in Mr Ives' report, as I indicated during the plea hearing, that your personality issues, mental impairments (to the extent that they amount to mental impairments) reduce your moral culpability for these offences as nonsense. I do not think that they do. I note Mr Ives could not even find a diagnosis under DSM4 that fitted you and if he had I am sure he would have told us about it.
47. It seems to me that just about everybody has a diagnosis that can be fitted in DSM4 and I think the notion that the supposedly identified mental impairments that you have engage the principles in the well-known case of Verdins is utter nonsense. However, as I pointed out to your counsel and I think that she conceded in the end that this was an appropriate way to approach the matter, all of those matters that he identifies seem to me to be relevant generally in assessing an appropriate sentence in your case and in determining the degree to which you have good prospects of rehabilitation. I think you do have reasonable prospects of rehabilitation and I propose to sentence you accordingly.
[59] T docs/276-77.
Judge Maidment also made several references in his sentencing remarks to the Applicant being remorseful for his conduct which, in his Honour’s view, augured well for the Applicant’s prospects of rehabilitation which in turn was reflected in the sentences that he imposed.[60]
[60] Sentencing remarks at para 48; T docs/277.
I also note the comment of SM Nikolic at [104] of the Tribunal’s decision[61] dated 31 July 2019 that: [62]
While acknowledging the difficult aspects [of] [the Applicant’s] life, this in no way diminishes the seriousness of his prolonged violent conduct or his risk of recidivism. Experiencing disappointing life events does not justify criminal offences, much less persistently violent offending over a protracted period of time.
[61] See above para [11].
[62] T docs/325.
While I am conscious of what could be considered mitigating and aggravating circumstances relating to the Applicant’s history and his offending, particularly the armed robbery and threat to kill, the approach that I have taken is to take those factors into account in assessing the seriousness of the Applicant’s offending and the risk of the Applicant offending in the future.
Risk of re-offending/likelihood of relapsing into crime and prospects of rehabilitation
Deputy President Tamberlin at [26] and [27] of WKCG observed:
26. ...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.
27. The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.
It cannot be disputed that the Applicant has an extensive and serious criminal record.
SM Nikolic’s summary of the Applicant’s record at [106] of his decision of 31 July 2019 was that the Applicant’s:[63]
…offending cannot be considered impulsive, isolated or short-lived. It is persistently-violent offending, reflective of someone with little respect for Australia’s law enforcement framework. [The Applicant] has not previously been dissuaded from reoffending by:
(a) the court’s lenient treatment prior to 2004 when imposing fines, CBO’s and good behaviour bonds;
(b) the constraints of conditional liberty;
(c) rehabilitative opportunities;
(d) the welfare of his family, particularly the children whose interests he invokes; or
(e) sentences of imprisonment.
[63] T docs/326.
I agree with SM Nikolic’s assessment of the Applicant’s criminal record.
As the Courts and previous tribunals have found, and as conceded by the Applicant, the primary contributing factors to the Applicant’s offending has been his long-standing drug and alcohol issues and related anger management issues, and, to a lesser extent, his fractured family and personal relations. At the hearing I asked the Applicant why he believed that he was not going to offend as he has in the past. His answer was:[64]
I learn a lot from whilst I was inside – inside gaol – and the thing I didn’t know about the life how you deal with your emotion and how you control your emotions. And – yes – and everyone is just – you always do – we all respect – have to respect each other. And other people there they’ve had new kids – father – same with us, you know?
[64] Transcript at 23.
The Applicant has undertaken number of programs in prison and in immigration detention. I asked the Applicant about those. His evidence was:
…violence program. (Indistinct) one. The nine months one. The one for nine months. And cover all the alcohol and drug and new life and how you (indistinct) from not touching (indistinct). (Indistinct) courses and drug and alcohol in jail. And (indistinct). And in detention centre, fathering courses. Parenting courses. And more anger management courses.
In a statement headed “Addressing my alcoholism and drug problem”[65] the Applicant said that:
[65] T docs/226-231.
(a)He drank heavily and used drugs, especially from 2003 to 2008 which resulted in his problems with the law.
(b)He started drinking at the age of 16 when he lived in Samoa.
(c)Drinking was always very bad for his relationships including those with his children.
(d)Drinking was very bad for his mental health. When he thinks about the things that he has done while drunk, he feels very bad about himself.
(e)He undertook drug and alcohol programs when in prison in 2005 and 2008. When he was first sentenced, he applied for alcohol and drug programs but was told that he was not eligible.
(f)When he was in the Fulham Correctional Centre, he tested positive to drugs.
(g)He now does not think of drinking. Alcohol is not for him. Alcohol has ruined his life and taken him away from his children. He now wants to spend time with his children and his grandchildren,
(h)He lists some of the programs that he has done as:
oHigh-Intensity Violence Intervention Program
oRelease Related Harm Reduction Program (similar to taking change)
oTaking Change Program
oCert I in General Education for Adults
oCert II in Cleaning Operations
oIntroduction to Anger Management Program
oCert II in Hospitality – Kitchen Operations
oMethadone Program in 2014 and 2015
oMany courses with the Emmaus Correspondence School
(i)In relation to what the Applicant has learnt through these programs, he said;
I learnt a lot of things in these programs that have helped me. Now I have lots of different techniques to use when I’m feeling upset to make sure I never do anything stupid again. I have lots of new skills that I’ve practised and taught to the islanders I support both in jail and the detention centre and when I get out I can teach these things to my kids and my loved ones to make sure they are always dealing with their emotions and their actions the best they can.
(j)The High Intensity Violence Intervention Program and the Release Related Harm Reduction Program and Taking Change Program taught him a lot. Likewise, the Introduction to Anger Management Program taught him how to manage his anger issues.
(k)Since he has been at Yongah Hill Immigration Detention Centre, he has been involved in the following programs:
oMen’s Group
oManaging Anger Course
oDad’s connecting with kids workshop
oLife Skills drug and alcohol education
oArt class
oMen’s Group Personal Development and Behaviour Change
oParenting class
(l)He has learnt much from the programs and this time is different because he has realised that he will be removed from his family if he reoffends.
(m)If he is allowed to stay in Australia, he will continue seeking support through programs, counselling and positive influences on his life. He will continue drug and alcohol counselling, anger management counselling and see a psychologist to help him manage his depression.
The Applicant’s record in prison and immigration detention is not good. When in prison between 2004 and 2008 the Applicant was recorded as having breached prison regulations on multiple occasions including assaults on other prisoners or staff and as having failed drug tests on three occasions.[66] From February 2013 to April 2020 the Applicant’s records notes multiple breaches of prison regulations including assaults, attempted assaults and eleven counts of failing drug tests, most recently returning a positive drug test in April 2020.[67]
[66] T docs/346.
[67] T docs/345-6.
The Applicant was cross-examined about his behaviour in prison and detention. Asked whether he had an explanation for his conduct, including the failing of drug tests, the Applicant’s answer was that he did not have an explanation. It was put to the Applicant that as recently as two years before the hearing, he still “had issues with substance abuse”.
The Applicant answered “yes”.[68]
[68] Transcript at 51.
Counsel then pointed out to the Applicant that since he gave evidence in the Tribunal in 2019 that there was zero chance of him re-offending, he had tested positive to drugs on three occasions. The Applicant agreed that that was the case. The Applicant’s evidence was that he had taken drugs (Buprenorphine) as recently as six months before the hearing in October 2022.[69]
[69] Transcript at 52.
The Applicant’s evidence at the hearing was that he intended living with his daughter in Melbourne and that a friend for whom he worked previously had organised a job for him.[70] The Applicant was also asked about what steps he had taken to see what courses or treatment would be available to him if he were to be released into the community.
[70] Transcript at 23-4.
His evidence was:[71]
[71] Transcript at 52.
APPLICANT: …I will go see the doctor outside and help me to put me in a program and because I can’t do it from in there, I have to get out to talk to the doctor and the doctor then give me a program or something for the (indistinct) because I don’t want to go back to the methadone.
COUNSEL: So you don’t know who this doctor is or who it – where they are, you’ve just got an intention that if you’re successful, you’ll go find a doctor and go on a program?
APPLICANT: I want to look for a doctor in Melbourne, yes.
…
COUNSEL: So it’s clear that your drug – your substance abuse issues are still present, you’d have to accept that if you were still using something six months ago, you realise that you have to do something about your substance abuse?
APPLICANT: Yes
COUNSEL: And do you accept that your substance abuse has been linked to your violent offending?
APPLICANT: Yes, sir.
COUNSEL: Isn’t it unrealistic to say that you’re not, at least, a risk to the community, you’re still using from time to time and you know that that leads to being violent, so aren’t you a risk?
APPLICANT: I’m not a risk, I am a lot better than I was.
…
COUNSEL: But you have the intention to go see a doctor but you don’t know who that is, you have an intention to undertake a program but you don’t know what that is, you want to be clean from drugs but it was only six months ago that you used for the last time, this is an accurate assessment, isn’t it, this is what the situation is?
APPLICANT: Yes, sir.
Letters of support were provided by a number of people including the Applicant’s eldest daughter Ms T, a twenty-year-old student and her mother Ms C. Ms T and Ms C also gave evidence at the hearing. As noted at [30] above, significant portions of the statements and letters of support filed by the Applicant appear to have been prepared for previous applications and court proceedings and dealt with issues which are not relevant to the issue that I have to decide.
I asked Ms T how I could be satisfied that the Applicant was not a danger to the community, how I could be satisfied that the Applicant would not re-offend as he has in the past. Ms T’s evidence was that the Applicant’s children, and now his grandchildren, will hold him accountable for his actions. His children were, in her view, too young in the past to appreciate what the Applicant was doing and to hold him accountable. That is not the case now. She also referred to her father now being much better at controlling his anger and having learnt from the programs that he has undertaken. She said that her younger half-brother, TU was going through anger management issues and that she had received advice from the Applicant, who had also spoken to his son TU on the telephone, and that that had proven to be very helpful.[72] The Applicant now shows “much honesty and vulnerability even”.
[72] Transcript at 55-6).
Asked where her father would live if he were to be allowed to remain in Australia, Ms T’s evidence was that she thought that he would stay with his long-time friend Grant who lives in Melbourne.
Ms C provided a number of statements, however, they mostly dealt with issues that are not relevant to this application. Statements were also provided by two people with whom the Applicant has spent time in prison or immigration detention.[73] They speak generally to the Applicant being a positive influence in prison/detention, particularly for the Pacific Islanders.
[73] T docs/183 and 184-5.
Ms C’s evidence at hearing was that she thought that the Applicant was not a danger because he had cut ties with his former partner and her family whose relationship with the Applicant was “toxic”.[74] She also observed that:
He was in his mid-30s and still partying when he was sentenced this time, and now he’s, you know, counting down to 50. 30 He’s a grandfather. Yes, his kids hold him accountable now. And he never saw them suffering when they were younger.
[74] Transcript at 62.
It is clear on the evidence, including that of the Applicant, that his offending is closely linked to his drug and alcohol abuse and his anger management issues. Unfortunately, there is no psychological evidence or evidence from any appropriately qualified health professional relating to or assessing the Applicant’s risk of re-offending. There is no evidence that the Applicant has ever undergone any formal risk assessment or been assessed for any formal program of rehabilitation specifically targeting the causes of the Applicant’s criminal behaviour. While the Applicant has undertaken various individual programs while he has been in prison and in detention, these appear to have been on an ad hoc basis, without any identification of the drivers of the Applicant’s behaviour and a tailored program or series of programs designed to address the Applicant’s behavioural needs. There appears to be no plan currently in place for the Applicant to receive ongoing treatment or counselling and the Applicant appears not to have taken any steps to identify what programs would be available to him if he were to be released into the community. The Applicant’s living arrangements should he be allowed to stay, are also not clear. While his evidence was that he intended living with Ms T in Melbourne, that was not her evidence.[75] The Applicant’s evidence on potential employment prospects was also vague and unsupported by any evidence from a party willing to employ the Applicant.
[75] See [101] above.
I do not doubt the Applicant’s sincerity, nor that of those who gave evidence in his support, when he says that he has changed and that he will not re-offend if he is allowed to stay in Australia. I also accept that the Applicant is remorseful for his past criminal conduct. In the end, however, all that we have is the Applicant’s statements that that he has changed and that he will not re-offend. As was pointed out in cross examination, the Applicant has made that claim before to courts and to this Tribunal and those claims have not been fulfilled.
The Applicant has a long history of violent offending and has been incarcerated on four occasions. His three previous periods of imprisonment were followed by instances of further offending. He received a formal warning of the consequences to his visa status if he offended. He continued to offend.
As noted, we do not have the benefit of any formal assessment or qualified opinion as to the risk of the Applicant re-offending. That is through no fault of the Applicant. It is, unfortunately, simply the fact. In the end what we have is the view of the Applicant and two people close to the Applicant and others that they think that he has changed and will not offend as he has repeatedly done in the past. Their views, while they may well be sincere, are not sufficient for me to be satisfied that the long-standing and deep-seated causes of the Applicant’s violent criminal behaviour have been addressed. In that regard I note that even as recently as six months before the hearing in this matter, the Applicant was still taking drugs illicitly.[76] I cannot see that anything has changed to reduce the Applicant’s risk of offending as he has in the past to any material degree. On my assessment the Applicant is at least a medium to high risk of re-offending.
[76] See [97] above.
I am satisfied that there is a real or significant risk or possibility of harm to one or more members of the Australian community if the Applicant were to be released into the community, thereby meeting the test in [31] of DP Tamberlin’s decision in WKCG.[77]
The Applicant poses an unacceptable level of risk of danger to the Australian community. In so finding, I am mindful of the statement of Brennan J (as he then was) sitting as President of the Tribunal in Salazar, as quoted by Goldberg J in Vabaza that:
The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk.
[77] See [37] above.
Even if the comments made by Logan J in DOB18 were to be taken to be setting a higher standard than that set out by DP Tamberlin in WKCG, the standard set by Logan J is met in this case. At [83] of his judgment, Logan J stated that “read in context, ‘danger’ in s 36(1C) means present and serious risk”.[78] If that is to be taken as the standard rather than that stated by DP Tamberlin, then I find that if the Applicant were to be released into the Australian community, he would pose a present and serious risk.
[78] See [44] above.
Further, if one is to take Collier J’s observations at [44]-[46] of DMQ19[79] as being another statement of the meaning of danger to the Australian community, then I am satisfied that there is “a present risk which is “real” or “significant” or “serious”, and which is neither remote nor fanciful, that the [Applicant] will cause harm of a sufficiently serious nature in the present or future.”
[79] See [49] above.
DECISION
l find that:
(a)the Applicant has been convicted by a final judgment of a particularly serious crime;
(b)the Applicant is a danger to the Australian community; and
(c)as a result, the Applicant does not satisfy the criterion in s 36(1C)(b) of the Act and is taken not to satisfy the criterion under s 36(2)(aa) by operation of s 36(2C)(b)(ii) of the Act.
Accordingly, the decision of the delegate of the Minister made on 8 June 2022 to refuse to grant the Applicant a Class XA (subclass 866) Protection visa under s 65 of the Act is affirmed.
I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[Sgd].....................................................................
Associate
Dated: 19 May 2023
Dates of hearing: 10 October 2022 Counsel for the Respondent: Mr A Gerrard, Australian Government Solicitor
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