HQNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 87

HQNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 87 (2 February 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2019/5625
GENERAL DIVISION  )

Re: HQNW
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:             Senior Member Dr N A Manetta

DATE OF CORRIGENDUM:            17 February 2021

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. delete the last sentence of paragraph 57, which reads as follows: “Having regard to Dr O’Daly’s evidence about Suboxone (see para [29] above), I do assess HQNW’s use of this drug in detention as significant.”; and

2. in substitution, insert the following sentence at the end of paragraph [57]: “Having regard to Dr O’Daly’s evidence about Suboxone (see para [29] above), I do not assess HQNW’s use of this drug in detention as significant.” 

.................[Sgnd].....................

Dr N A Manetta
(Senior Member)

Division:GENERAL DIVISION

File Number(s):      2019/5625

Re:HQNW

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:2 February 2021

Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision that the Tribunal does not consider the applicant is a danger to the Australian community for the purposes of section 36(1C) of the Migration Act, 1958.

.........................[Sgnd]..............................................

Senior Member Dr N A Manetta

Catchwords

Refusal to grant protection visa – Applicant convicted of serious criminal offences –– Delegate considers applicant is “a danger to the Australian community” under section 36(1C)(b) of Migration Act 1958 – Whether applicant such a danger – Consideration of expert reports –– Low risk of recidivism – Decision under review set aside and decision substituted that applicant is not a danger to the Australian community

Legislation

Migration Act 1958 (Cth)

Cases

WKCG and Minister for Immigration and Citizenship [2009] AATA 512; 110 ALD 434
R v Bonython (1984) 38 SASR 45
Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98

DOB18 v Minister for Home Affairs [2019] FCAFC 63

REASONS FOR DECISION

Senior Member Dr N A Manetta

1. This is an application by HQNW seeking a review of a decision of the respondent’s delegate dated 4 September 2019 to refuse him a protection visa. The delegate considered that HQNW, who had committed serious crimes, was “a danger to the Australian community” and was, therefore, ineligible to receive a protection visa given section 36(1C)(b) of the Migration Act 1958 (“the Act”).

2. Hearing the matter afresh on the evidence adduced before me, I must decide whether I consider HQNW is a danger to the Australian community.   In a proceeding such as this, the Tribunal acts de novo and reaches the correct or preferable decision on the evidence adduced before it.  From this it follows that the Tribunal may affirm the decision under review notwithstanding the presence of an error in the delegate’s decision if that is the correct or preferable decision.  The Tribunal may also set aside the decision notwithstanding the absence of any discernible error in the delegate’s reasoning if that is the correct or preferable decision.

3. At the hearing before me, Mr Chatterjee appeared for HNQW; Ms Coleman, for the respondent.

   STATEMENT OF CONCLUSION

4. I have decided to set aside the decision under review and to substitute a decision that the Tribunal does not consider the applicant is a danger to the Australian community. 

5. I now set out the background facts and my reasons for this conclusion.

   BACKROUND FACTS

6. HQNW is 33 years of age, born on 21 March 1987.  He entered Australia in 2006 together with his mother and siblings. The family had been living in Iran before 2006, but they are Afghani.  They had earlier left Afghanistan given the unrest and violence there.  HQNW had two brothers and three sisters, but in May 2020 his two brothers died in a car accident.

7. HQNW’s father did not accompany the family to Australia, having died some years earlier.  After the father’s death, the family was recognised by the UNHCR in Iran as refugees. The family was granted “woman at risk (subclass 204)” visas to enter Australia.  I assume these visas were granted on the basis that HQNW’s mother, then a widow, was a woman at risk, was therefore eligible for a “woman at risk visa”, and that the entire family was eligible to enter Australia on this type of visa.

8. Whilst in Australia, HQNW joined an outlaw motorcycle gang, the “New Boyz”, and committed serious offences of violence. In 2016 his “woman at risk visa” was cancelled mandatorily under s 501 of the Migration Act, 1958.  The delegate declined on that occasion to revoke the cancellation in his or her discretion. This Tribunal heard an application by HQNW, but affirmed the delegate’s decision not to revoke the cancellation of the visa: see Exhibit A1 at pp 186ff where the Tribunal’s decision is reproduced. 

9. HQNW then applied for a protection visa, which is the subject of the application before me.  The delegate’s decision in respect of the application is set out at Exhibit R1, pp 9ff. In summary, the delegate found that certain important details included in HQNW’s application for a visa were untrue. In particular, the delegate did not accept that HQNW’s father had died in Afghanistan, did not accept that HQNW had witnessed the death of his father at the hands of the Taliban, and did not accept that HQNW was a child soldier.  Nevertheless, the delegate found that HQNW was, as he had claimed, of Hazara ethnicity and of the Shia Muslim faith, and that he was at risk of persecution in Afghanistan for this reason.  That is, HNQW was found to face a real chance of persecution were he to return to Afghanistan (Ex R1, p 21).  The delegate also found that HQNW had no right to return to Iran.

10. These findings led the delegate to conclude that HQNW was “a refugee” as defined in the Act. Although HQNW was cross-examined at some length over his family’s claims to be refugees, I believe I should rely on the delegate’s report so far as my review is concerned. Accordingly, I accept for the purposes of my review that HQNW would face a serious risk of persecution were he to return to Afghanistan because he is an Afghani of Hazara ethnicity and a Shia Muslim.

11. The delegate decided that HQNW was not eligible to receive a protection visa because he failed an essential criterion for the grant of the visa; namely, that specified in section 36(1C)(b). Section 36(1C) of the Act provides as follows:

“36(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.”

12.  This criterion in paragraph (b) required the delegate to address the question of whether HQNW is “a danger to the Australian community”.  There is no doubt that HQNW has been convicted by “a final judgment of a particularly serious crime” as mentioned in the paragraph. 

13.  In the event, the delegate found that HQNW was “a danger to the Australian community”. The question before me on review is whether on the evidence before me I consider that HQNW is a danger to the Australian community. The delegate applied the so-called “test” set out in the well-known decision of this Tribunal in WKCG and Minister for Immigration and Citizenship [2009] AATA 512; 110 ALD 434.

REASONS
HQNW’s Offending

14.  HQNW’s criminal record was before me at Exhibit R1, pp 42-43.  It is appropriate to concentrate on the two series of offences tried in the District Court of SA.  These are the most serious offences of which HNQW has been convicted.  I accept that he has been convicted of other offences, but these are not of critical importance, although they must be considered.  An estimation of the danger HQNW poses, or lack thereof, involves principally a consideration of two series of offences, which he committed whilst associated with the New Boyz gang.  I describe these offences below.

15.  HQNW was convicted after a trial in the District Court of South Australia of serious offences in relation to certain events that occurred outside a Centrelink office in suburban Adelaide in 2009.  HQNW and another man had lain in wait for a man whom I shall call “E”.  HQNW believed this man was responsible for an assault upon his brother.  HQNW and his co-offender attacked “E” and the person accompanying “E” on that occasion, and then damaged the car in which “E” had been travelling.  HQNW and his co-offender were armed with a hammer and an axe. The sentencing Court found (Ex R1, p 123) that HQNW’s intention was “to hand out a severe beating” to the victims, and that “at one stage of the incident” HQNW was “pressing home [his] attack with a good deal of ferocity” and that their victims “were simply lucky that they were not more severely injured”. The sentencing Court took into account the harsh and horrific upbringing it found HQNW to have endured before he came to Australia. HQNW was nevertheless sentenced on 20 January 2012 to four years’ jail with a non-parole period of two years.  That sentence was reduced on appeal to two years and nine months with a non-parole period of nine months.

16.  HQNW had been released on parole for only a short time, a matter of months, when he committed a further series of offences.  This offending occurred in February 2013. Two weeks before this time, HQNW had apparently lent some $10,000 to the victim.  When the money was not repaid, HQNW and his co-offender assaulted the victim repeatedly.  HQNW forced his victim into a car driven by HQNW’s brother, where the victim was falsely imprisoned for some three hours, and HQNW repeatedly assaulted him with an iron bar, which amounted to an “aggravated harm” offence.  He was forced to relinquish ownership of his vehicles and this constituted the further crime of “aggravated blackmail”.

17.  I have read the sentencing remarks closely (Ex R1, pp108ff). The global head sentence for the three offences was five years and six months’ imprisonment reduced by some ten months to take account of guilty pleas. A non-parole period of three years and six months was fixed.

18.  HQNW accepted in his evidence before me that he had been a member of an outlaw motor cycle gang.  On the evidence before me, I accept that he willingly joined the gang, and knew of its criminal activities (including in relation to illicit drugs).   In short, HNQW became a member because he accepted its criminal and violent culture.

19.  I note that the second offence followed soon after HQNW was released on parole.  It is clear that jail had had no effective deterrent effect at this point of HQNW’s life. 

Professional Examinations

20.  HQNW has recently been examined by a psychiatrist (Dr O’Daly) and psychologist (Dr Kwok), each of whom prepared reports which HQNW tendered, and by a further psychiatrist who also prepared a report but without the benefit of an interview with HQNW (Dr Walton). This last report was tendered by the respondent. I turn now to deal with each of these reports and the evidence of their authors.

(i)Dr O’Daly

21.  Dr O’Daly is a highly experienced psychiatrist who has prepared many reports in respect of detainees in custodial institutions. He was engaged by the respondent to prepare a report in relation to HQNW. In the event, the respondent did not tender his report, although it was included in the Supplementary “T” documents filed with the Tribunal (Ex R2, pp 1081ff). The respondent disputed the reliability of Dr O’Daly’s conclusions.  The report was tendered on behalf of HQNW and became Exhibit A4.

22.  Dr O’Daly assessed HQNW in mid-June 2020 at Yongah Hill Detention Centre in WA. Dr O’Daly was called to give evidence before the Tribunal. I note Dr O’Daly frequently uses the expression “HQNW said” in his report. I accept Dr O’Daly’s evidence that, when using this expression, he was merely recapitulating what he had been told by HQNW, and that this recapitulation did not signify that Dr O’Daly necessarily accepted the accuracy of what was put to him or that HQNW was necessarily being truthful (Tr.124). I note that Dr O’Daly had access to other reports prepared by other mental health professionals. These informed his evaluation of HQNW.

23.  Dr O’Daly conducted his own mental health examination. Dr O’Daly noted that HQNW presented himself well.  The “Summary and Assessment” section reads in part as follows (Ex A4, pp 1094-1095):

“In the context of my awareness of the severity of the descriptors of [HNQW]’s offending, as made available within the reviewed reports of and regarding Tribunal appeals, in my clinical opinion, currently the risk of a likelihood of the applicant reoffending in a violent way, is low.

[HNQW]’s history describes the development of (firstly) a young child, exposed to profoundly negative psychological experiences, inclusive of the loss by traumatic means and without ever replacement, of his main male role model/figure i.e. his father.

[HQNW] then, as a child, had the expectation placed upon him, of replacing his father’s role of provision, in the context of war, danger, poverty and limited, to no, effective psychosocial nor academic educational experiences.

He was then exposed to numerous geographical and significant cultural disruptions and in that continued context of limited education, poverty and expectation (sic) of premature expectations of maturity, he sought alignment by maladaptive psychosocial means.

[HQNW] is now, a more mature, more educated and very much more actively and appropriately clinically treated and hence psychosocially educated young man, who now has improved and hence [has] actual good insight and remorse and hence motivation, in the further very relevant contexts of:

his now vastly improved command of the English language;

stable mental health;

absence of any formal Axis I psychiatric diagnosis;

absence of drug and alcohol issues;

compliance with relevant treatments;

family/community supports;

apparent work availability;

stable accommodation available;

religious affiliation;

and an absolute realisation of the severity of the implications of his previous behaviours; and the likelihood of the severity of any penalty should be reoffend;

and his confidence in his own ability to now seek appropriate and well-targeted treatments

relevant to his psychosocial developmental experiences;

to assist his continued rehabilitation towards a non-criminal socially integrated and supported lifestyle.”

24.  Dr O’Daly then proceeded to answer the specific questions put to him. Dr O’Daly made it clear (see Ex A4, at p 1095) that his assessment of the likelihood of HQNW’s recidivism as low was premised on HQNW’s continuing to engage with clinical psychology follow-ups for some nine months after his release from detention.

25.  Dr O’Daly had a face-to-face interview with HQNW which he conducted for about an hour at the detention centre where HNQW was being held (Tr.116).  I accept that he did not have the benefit of access to Dr Owen’s clinical notes. Dr Owen was a mental health specialist at the detention centre.  I accept that these notes show that HQNW had been experiencing, amongst other things, thoughts of suicide.  I accept, therefore, the possibility that HQNW’s present mental state may not have been as stable as Dr O’Daly found it to be.  But, equally, I note that this factor is but one aspect of the report. I further note that it is perhaps not surprising that a person who has been held for some time in a detention centre and is facing the very real prospect of deportation to a country that represents a significant danger to him would have feelings of depression and even suicidal thoughts.  Moreover, Dr O’Daly was also aware of reports which indicated HQNW had suffered from mental health concerns in the past, and these informed his own assessment (Tr.120 and Tr.121).

26.  I accept Dr O’Daly’s evidence that he did not simply rely on HQNW’s self-reporting but interpreted HQNW’s account together with other relevant factors (Tr.122).  I also accept that Dr O’Daly’s opinion did not proceed on the basis that HQNW presently has contact with members of outlaw motorcycle gangs.  He acknowledged HQNW’s past association, and he also acknowledged that HQNW had told him that the association had ceased some years earlier. 

27.  Dr O’Daly properly conceded, in my opinion, that if there were any present association with outlaw motorcycle gangs, that would inform his assessment as to risk (Tr.125). So much seems to be self-evident. Dr O’Daly also conceded properly that the risk of HQNW’s reoffending would increase if he did not follow up with psychological counselling when released (Tr.136).

28.  In answer to questions from me, Dr O’Daly said that the death of HQNW’s two brothers in the recent past in a car accident could potentially be a “galvanising” event for HQNW. On their death, HQNW became the sole survivor of the male children in a family where there was no father.   Dr O’Daly believed that the deaths could potentially be a “positive” for HQNW (Tr.137).

29.  Dr O’Daly appreciated HQNW had consumed alcohol and drugs in prison but proceeded on the basis that HQNW had made an attempt to abstain in immigration detention (Tr.138).  Dr O’Daly indicated that the drug Suboxone (which HQNW was found to have possessed while in immigration detention) was not addictive and it gave only a “subtle amount of pleasurable physical experience” (Tr.139).

30.  I have decided to accept Dr O’Daly’s specialist conclusions. I found Dr O’Daly’s report and his oral evidence to be balanced and well considered. 

31.  In reaching this finding, I do accept Ms Coleman’s submission that HQNW did have correspondence with outlaw motorcycle gangs while in jail in 2017. HQNW’s explanation to me in his evidence that he was merely corresponding with gang members as a way to improve his English was not credible, and I reject it firmly. I also accept that any resumption of HQNW’s association with gang members would place HNQW at a higher risk of recidivism.  I have no evidence before me, however, of more recent correspondence or communication with gang members from the detention centre. I do not think I should infer that the association has necessarily continued in more recent times.  Dr O’Daly was clear in his report that one important feature in his assessment was that HQNW had ”an absolute realisation of the severity of the implications of his previous behaviour; and the likelihood of the severity of any penalty should be reoffend” (Exhibit A4, pp.1094-1095).

32.  For this particular applicant, this is a very important factor to weigh up. HQNW fully understands that further criminal behaviour of the type in which he has engaged in the past will result in incarceration for an even longer period (given his prior convictions).  But even more importantly in my opinion, HQNW also appreciates that any incarceration would be inevitably followed by further procedures to cancel his visa with a view to his deportation to Afghanistan, a country where has no contacts and where he legitimately entertains very real concerns for his safety.  This scenario provides the most powerful deterrent for him to stay away from gangs, drugs and alcohol misuse.

33.  Dr O’Daly did also refer (at Ex A4 at p.1094) to HQNW having good insight and remorse. I do not believe Dr O’Daly’s references in this regard were necessarily to any moral appreciation by HNQW of the wrongfulness of his past acts, or at least not solely to that factor. I believe that Dr O’Daly was referring, at least partly, to an improved understanding on HQNW’s part of why he may have committed crimes in the first place (given his past life experiences) and to the remorse he feels for the years he has wasted in jail and detention (cf Ex A4 at p.1084).

(ii)Dr Walton

34.  The respondent also commissioned a second report after it had received Dr O’Daly’s report.  This report was received in evidence as part of Exhibit R3 (at pp 1148ff). The author is Dr Walton, a psychiatrist.  Dr Walton did not interview HQNW as HQNW declined to make himself available. Dr Walton did not discuss Dr O’Daly’s assessment of HQNW with Dr O’Daly although he disagreed in part with Dr Daly’s conclusions.

35.  Dr Walton concluded that “[HQNW] represents a moderate risk of perpetrating harm upon others, trending towards mild but he will remain in at least a low level risk category indefinitely on the basis of past history alone”: see Ex R3 at p.1152. He prefaced this conclusion, however, with the words: ”Bearing in mind all the qualifying limitations above, as best I can judge…”. In this connection, Dr Walton had earlier referred to the “fraught” and “unreliable” exercise of predicting the risk of recidivism.  He noted that in his view the exercise had been essentially abandoned by mental health professionals in clinical practice: Ex R3 at p.1152. 

36.  He did acknowledge that a somewhat more reliable and less hazardous exercise involved assigning a category of risk to a person, but then added that “just how helpful such categorisation may be is questionable”.  He then went on to refer to the many unpredictable factors that may end up proving relevant; for example, a recurrence of significant mental illness a relapse into substance abuse, relationship difficulties, traumatic life circumstances and the availability of weapons: Ex R3, at p.1152.

37.  It is useful to reproduce the next part of his report (Ex R3, at p.1152):

“Ultimately I do not claim particular expertise in relation to prediction of violent behaviour. Psychiatrists are probably no better (or no worse) than any educated person. However, in my experience the most reliable of a number of unreliable predictors of such a future propensity is a solidly established past history of aggressive behaviour. [HQNW], in my opinion, has repeatedly engaged in assaultive behaviour causing harm to others but not of very serious degree. Additional risk factors potentially relevant to [HQNW] include: being a victim of violence, substance abuse, psychiatric disorder, association with antisocial peers and family disruption. Alternatively, normal intelligence, family support and application to treatment and rehabilitation, would be considered to be protective factors.”

38.  There are several points I would make in relation to Dr Walton’s observations.  Dr Walton comes close to denying that an area of reliable expertise governing the prediction of risk exists today. His observations that he did not “claim particular expertise in relation to the prediction of violent behaviour” and that “[p]sychiatrists are probably no better (or no worse) than any educated person” do seem to contradict the proposition that prediction of risk is a recognised field of expertise within the discipline of psychiatry. If that is, indeed, his view, I must say I question why Dr Walton agreed to prepare a report, particularly since he was, as he acknowledged, disadvantaged by not having had a face-to-face interview with HQNW: Ex R3, at p.1152.  From a legal perspective, these views may indeed cause his report to fail the test for the reception of expert opinion evidence: see, for example, the well-known statement of principle for the reception of expert opinion evidence given by King CJ in R v. Bonython (1984) 38 SASR 45, at 46. Moreover, Dr Walton’s evidence about the general lack of reliability of risk prediction seems to imply that his own report may not be particularly reliable.

39. I also note Dr Walton’s observation that in his experience “the most reliable of a number of unreliable predictors is a solidly established past history of aggressive behaviour”. But this factor alone cannot govern the assessment required of the Tribunal. The Tribunal’s task under s 36(1C)(b) of the Act is to estimate the level of risk a particular individual (in this case, HQNW) poses to the Australian community, and in particular to answer the question whether the Tribunal considers HQNW is a danger to the Australian community. A person’s past criminal behaviour is very often relevant to an estimation of the risk that person will pose to the community on his or her release. That can be accepted as a general proposition. But as the question before the Tribunal always relates to a particular individual, it follows that other factors personal to the individual concerned must also be evaluated closely if an accurate assessment of the current risk profile of that particular individual is to be arrived at. In short, it may well be true, as a general proposition, that a history of violent behaviour is the “most reliable” predictor of recidivism among “a number of unreliable predictors”; but the predictor may prove to have less, or even a limited, significance in the case of a given individual. 

40.  Dr Walton acknowledges that “current/dynamic” factors are relevant to the assessment process and these are usually assessed by way of a face-to-face interview: Ex R3, at p.1152. As I have said, he expressly acknowledges he was disadvantaged in that regard.

41.  In this connection, I would note that Dr O’Daly was quite clear in his oral evidence to me that in his view it is not right for a psychiatrist not to see the person in question (Tr.140). I accept Dr O’Daly’s evidence in this regard. In my view, it was not helpful for Dr Walton to proceed to evaluate the risk HNQW poses to the community in the absence of an understanding of what he calls the “current/dynamic factors”, which as he acknowledged are usually assessed by way of a face-to-face interview (together with of course other relevant information).

42.  Dr Walton confirmed that he did not contact Dr O’Daly to discuss Dr O’Daly’s report with him.  Dr Walton has identified in his report what he took to be a clear anomaly in Dr O’Daly’s report.  Dr Walton noted in his report that Dr O’Daly had said that HNQW did not present a risk of harm to the Australian community, but had then later said that currently HQNW’s risk of reoffending was low.

43.  Dr O’Daly, when questioned in the course of his evidence about this apparent anomaly, noted that the first statement was intended to refer to HQNW’s risk of recidivism while held in detention, and the second statement concerned HNQW’s overall risk of reoffending in the future in the community at large (Tr.129). There was, therefore, no contradiction between the two statements.

44.  Dr Walton indicated in his evidence that he believed he was not prevented by any legal rule from speaking with Dr O’Daly. He believed he needed only to obtain his instructing solicitor’s permission, but was not otherwise barred from speaking with Dr O’Daly (Tr.183). He indicated in his oral evidence that he did not approach his instructing solicitor for permission to speak with Dr O’Daly because he thought it unnecessary to do so. I think this was an error in Dr Walton’s approach. I think it would have been better for Dr Walton, who believed himself disadvantaged through the lack of a one-on-one interview with HNQW, to speak with Dr O’Daly about any apparent inconsistency he had identified in Dr O’Daly’s report and more importantly, to explore the “current/dynamic factors”. I think Dr Walton’s report to the Tribunal would have been better informed and more helpful had Dr Walton spoken with Dr O’Daly, who had had the advantage of a one-on-one interview with HQNW. 

45.  In the circumstances, I have placed little weight on Dr Walton’s report. I do not believe Dr Walton addressed in a persuasive way the critical question before the Tribunal; namely, what risk this particular applicant poses to the Australian community. His report was hampered substantially by the lack of a face-to-face interview with HQNW (which I accept he requested but which was in the event declined) and by a lack of discussion with Dr O’Daly, which he conceded may have changed his views (although he believed that was not likely) (Tr.181).  I note further that Dr Walton’s oral evidence to the Tribunal was, in any event, that Dr O’Daly’s conclusions “could be regarded as perfectly valid views” (Tr.181).

46.  All in all, I have decided that Dr O Daly’s evidence is to be preferred to Dr Walton’s.

(iii)Dr Kwok

47.  The third recent report I have to consider is that of Dr Kwok dated 9 April 2020: Ex A1, pp 111ff. Dr Kwok’s conclusions appear at paragraphs [68] to [70]. Her final conclusion is expressed at paragraph [70] as follows:

“In summary, on the balance of his risk and protective factors, it is my opinion that [HQNW] poses a low/medium risk of re-offending and danger to the Australian community, most particularly associated with unresolved issues to do with traumas and the impact these have on his personality and attitudes. Addressing these dynamic risk factors through target-specific intervention will improve the reoffending odds and reduce his risk to the Australian community. Given the way that he responded to counselling thus far, it is likely that he will be amenable to treatment.”  (emphasis in the original)

48.  Dr Kwok’s conclusion is that HQNW represents a “low/medium risk” of reoffending. She had conducted an interview by video-call only.  In her oral evidence, Dr Kwok reaffirmed the conclusions in her report, but noted that HQNW was “heading towards the low” (Tr. 225) I do not believe there to be any significant difference between  Dr O’Daly and Dr Kwok in this regard. Bearing in mind Dr Daly’s very significant experience as a psychiatrist, I do prefer Dr O Daly’s statement of conclusion based, as it is, on a personal face-to-face interview with HQNW.

HQNW’s evidence

49.  I have accepted Dr O’Daly’s conclusion notwithstanding HQNW’s evidence to the Tribunal. Much of that evidence was unsatisfactory. To give just a few examples of the unsatisfactory nature of HQNW’s evidence, I note that I have rejected the truthfulness of the following evidence given to me:

·     that he had corresponded with outlaw motorcycle gangs from jail in order to improve his English;

·     that the attack in the suburban Centrelink carpark was a case of self-defence;

·     that he had never tried methylamphetamine in his life;

·     that he had swallowed a sleeping tablet only on the day he was caught with the drug Suboxone in his mouth.

50.  These are examples only of his generally unsatisfactory evidence. I am satisfied that HQNW gave evidence that he thought would advance his case. Furthermore, I was not able to discern in his answers any genuine moral remorse (that is, a sense of moral guilt for the wrongful harm he has inflicted on his victims), and I have proceeded on the basis that he may as yet have developed only limited moral remorse.

51.  Despite HQNW not having developed more than limited moral remorse, I believe the factors mentioned by Dr O’Daly and Dr Kwok in their reports are important in supporting a conclusion that HQNW poses a low risk of reoffending provided he continues with ongoing psychological treatment. I agree with them that HQNW does have appropriate family supports. On the evidence before me, he does have good prospects of being employed in a family friend’s barbershop on his release[1].  He has engaged in counselling, and there are prospects of that counselling yielding positive results. He has a loving family who are very anxious to have him return.

[1] See Exhibit A1 at pp 178-9, and the oral evidence of Mr Hamidi.at Tr. 307-309.

52.  In addition, it is clear to me that HQNW understands fully that the choice is now very much his so far as resuming links with outlaw motorcycle gangs is concerned. I believe the deterrent effect of prospective deportation, the reality of which has dawned on HQNW in a concrete way given his present detention in Western Australia, is particularly important. I accept that jail alone did not prove a sufficient deterrent for HQNW after the first series of offences I have described, but the prospect of deportation to Afghanistan is a very powerful deterrent for him.

53.  I note that there was some cross-examination of HQNW concerning the exact nature of the events surrounding the family’s refugee application. Having heard the evidence, there is a real doubt in my mind that HQNW has personally suffered to the extent that has been maintained by HQNW.  Like the delegate, I remain unconvinced that HQNW’s father was murdered by the Taliban and that HQNW was a witness to that death.  I do not doubt, however, that the family, as Afghani refugees living in Iran, were poorly treated in the Iranian community, and that HQNW suffered poverty, limited educational possibilities, the shock of his father’s death, and much discrimination. His earlier life overseas was clearly a very difficult one.  

54.  The respondent made the point that HQNW’s stable family life and past employment opportunities have not proved effective deterrents in the past. That point is well made. I accept that even jail was not enough in the circumstances to deter HQNW from the second series of serious offences.  These were committed within months of his release.

55.  The question before me, however, is whether I consider HQNW “is” a danger to the Australian community. I must make my assessment as at the date of the hearing before me having regard to all relevant circumstances obtaining at this point in time. I do believe that the situation has changed. As I have said, there is now an additional factor: the very real prospect of deportation. I believe HNQW has an understanding – through his actual experience of detention as the immediate precursor to deportation – that further criminal behaviour will not merely entail jail for a period of time but will lead to deportation.

56.  I note that HQNW has now been removed to a detention centre in WA, and his precarious position has been starkly obvious to him for some time. He has already lost one application before the Tribunal, namely, his application to have the cancellation of his woman-at-risk visa revoked.  As I have also noted, I have concluded that HQNW genuinely and reasonably fears that his life would be at risk in Afghanistan (cf Exhibit A4 at p.1084). This is an important additional factor that distinguishes his earlier situation.

57.  In forming my view of the risk HQNW poses to the Australian community, I have taken into account his behaviour in jail (including his drug use) and in detention. I accept that he caused considerable trouble in jail and consumed alcohol and drugs there.  He has had fewer incidents in immigration detention, to which he was transferred in 2018, which is some time ago.  The disciplinary incidents in detention have not been of decisive significance.  An immigration detention centre is an artificial and stressful environment.  Disciplinary issues that arise in this environment do not necessarily contradict a professional conclusion that a person has a low risk of recidivism once the person is released into the community. I do not believe the recorded incidents involving HQNW in detention contradict or undermine substantially Dr O’Daly’s view.  Having regard to Dr O’Daly’s evidence about Suboxone (see para [29] above), I do not assess HQNW’s use of this drug in detention as significant. 

58.  Finally, I was referred to a recent image posted by HNQW on his Facebook profile.  It depicts the upper portion of HQNW’s unclothed back. A large tattoo referring to the “New Boyz” outlaw motorcycle gang is visible. Visible also in the picture is the rear of HNQW’s head with long braided plaits of hair.  The submission was made that this image, showing as it does HNQW’s tattoo, is evidence that HQNW still has pride in his association with a criminal gang. HNQW gave evidence that he was merely displaying his hair. That explanation may be true, but I am hesitant to accept it given HNQW’s very unreliable evidence in other ways before me.  Even if I assume against HQNW that he was deliberately displaying the tattoo, I do not think that this particular event is so significant that it contradicts Dr O’Daly’s view fundamentally and makes it unreliable.

Application of the Statutory Standard

59. Quite properly, Dr O’Daly and Dr Kwok expressed their opinions in terminology used in their own area of expertise. I must apply the legal standard expressed in the Act.

60. The relevant statutory test is set out in section 36(1C)(b) of the Act, which I have set out above at [11]. Standing in the shoes of the respondent, I must ask myself whether I consider HNQW is a danger to the Australian community. (I note parenthetically that there is no doubt that HNQW has been convicted of a particularly serious crime and so this aspect of section 36(1C)(b) is satisfied.)

61.  In WKCG and Minister for Immigration and Citizenship [2009] AATA 512; 110 ALD 434, the Tribunal said at [31] in respect of a similar provision in the Refugee Convention:

“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 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 to both (sic) 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 involves a lesser degree of satisfaction than that required by the expression ‘probable’.” (emphasis in the original)

62.  I would note the word danger in the expression “danger to the Australian community” is not a legal term or a term of art. It is not a technical word. When asking and answering the relevant question, I may be guided by the decision in WKCG, which has often been cited[2]. The passage I have cited makes it clear that I need not find that HQNW is more probably than not at risk of recidivism before finding HQNW is a danger to the Australian community. The passage says, rather, that “it is sufficient if there is a real or significant risk of harm to one or more members of the Australian community”. Equally, I must also be careful not simply to substitute the words “real or significant risk or possibility of harm” for the statutory expression of “danger”, which is a word of ordinary meaning. I may be guided legitimately by any authoritative discussion of the concept, but I must bear in mind that the statutory question I must address is set out in the Act and is simply whether HQNW is “a danger to the Australian community”.

[2] The  applicant drew my attention to dicta in the Federal Court (DOB18 v. Minister for Home Affairs [2019] FCAFC 63 at [83] (Logan J)) indicating a “test” more favourable to the applicant, but I leave these to one side because any revision of the so-called “test” in WKCG has not been finally determined by the Court. 

63.  I would also point out here that the Tribunal in WKCG had earlier said this at [27]:

“The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36; 1 ALD 98 (Salazar), Brennan J said at ALR 38 ALD 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.

…’.”

64.  I would note in relation to this passage that the question before the Tribunal in Salazar was different.  The Tribunal in Salazar was concerned with reviewing the exercise of a discretionary deportation power.  It was in that context that the Tribunal made the observation referring to an “unacceptable” level of risk. The decision before me does not involve a discretionary decision. I do not have to consider what is, or is not, an “acceptable level of risk” in the context of deciding what is the correct or preferable exercise of a discretionary power. Rather, I must decide whether HQNW is “a danger to the Australian community”. This question does not involve a discretionary choice as to the appropriate outcome in the public interest.  I wish to make that clear in case it should be thought that I have considered whether HQNW ought to be deported or what an “acceptable” level of risk is. My function is more limited as I have indicated: I must simply apply a statutory standard of “danger to the Australian community” to the facts as I find them to be.

65.  Whether HQNW is a “danger to the Australian community” has proved to be a difficult question. I accept that HQNW’s crimes have been very serious and violent. They have been marked by premeditation. He has committed serious crimes while associated with a strongly anti-social and prohibited gang.  The first experience of jail did not deter him from further crimes.  On the other hand, his offending has not been so extreme, in my view, that any risk at all of its recurrence would make HQNW a “danger to the Australian community”.

66.  Dr O’Daly’s psychiatric evaluation has informed my answer to the question posed by the section.  It has not been decisive of the question, but it has been important.  

67.  I accept that HQNW will need ongoing psychological support so that his insight into his behaviour may improve. But I also accept that HQNW will very probably engage in that counselling both because of encouragement from within his supportive family and because I believe HQNW understands that he must take all measures to avoid any recurrence of violence in the community.

68. I believe the deterrent effect of threatened deportation upon HQNW is extremely powerful. As the law presently stands, should HQNW commit any further offences, any protection visa he had would be cancelled automatically under s 501 of the Act. HQNW knows first-hand that the prospects of his having a visa reinstated would be most uncertain: he has already failed to have his “woman at risk” visa reinstated before this Tribunal. This uncertainty will remain notwithstanding any risks he might face on a forced removal to Afghanistan: he cannot realistically anticipate that the Tribunal would exercise leniency and reinstate his protection visa if he were to reoffend. I believe he is under no misapprehension as to the strictness of Australian law or the extreme risk he would take in involving himself further in any criminal activity. He has now spent a considerable time in jail and immigration detention. His prospects of employment and stable family life on release, together with counselling, will provide him with appropriate supports, and these will be important. To the extent that his brothers might have been a bad influence upon him, I note that they are no longer alive. He has not participated in gang life in the community for many years (that is, for the entirety of his time in jail and immigration detention).

69.  All in all, I have concluded that while there is a risk of HQNW reoffending in a violent way, that risk is not great enough to make HNQW a “danger” to the Australian community.

70.  Finally, I would make a number of subsidiary points.  First, I have only considered those matters that have seen HQNW convicted of an offence.  He has had frequent appearances before courts where there has been no finding of guilt.  An application brought by the Attorney-General of SA for a supervision order was withdrawn in the event because HQNW is in detention, and I have not taken this into account.  Secondly, I reiterate that I have taken into account HNQW’s entire criminal record, which appears in Exhibit R1, pp 42-43, but the most recent offending has been of particular importance.  Thirdly, there have been many reports from mental-health experts going back a number of years included within the exhibits.  I have concluded that the three most recent reports I have discussed in these reasons are the most relevant to the question before me, directed as they are to HQNW’s present risk profile, which is the critical question.

FORMAL DECISION

71.  The formal decision of the Tribunal will be to set aside the decision under review and to substitute a decision that the Tribunal does not consider HQNW is a danger to the Australian community. 

72.  The respondent should now continue the further processing of HQNW’s application for a visa.

1.       I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

................[Sgnd]..................
Administrative Assistant Legal

Dated: 2 February 2021

Date of hearing:	12, 13, 17, 18, 19 August 2020, 1 October 2020.
Advocate for the Applicant:	Mr I Chatterjee instructed by Ghan Migration Solutions
Advocate for the Respondent:	Ms S Coleman instructed by The Australian Government Solicitor