HSCK v Minister for Home Affairs
[2019] AATA 4392
•28 October 2019
HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 (28 October 2019)
Division:GENERAL DIVISION
File Number: 2019/1194
Re:HSCK
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:28 October 2019
Place:Perth
The decision of the delegate of the Respondent to refuse the Applicant a Protection
(class XA) (subclass 866) visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.
................................[sgd]........................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – s36(1C)(b) – particularly serious crime – not a balancing exercise – Direction 75 – danger to the Australian community –
non-refoulement obligations – decision affirmedLEGISLATION
Migration Act 1958 (Cth) – ss 5, 5H(1), 5M, 36(1C), 36(1C)(b), 36(2)(a), 36(2)(aa), 47, 65, 189, 197, 197(C), 198(6), 499, 500(1)(c)(i)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014
(Cth)
CASES
DMH16 v Minister for Immigrationand Border Protection [2017] FCA 448; (2017) 253 FCR 576
DOB18 v Minister for Home Affairs [2019] FCAFC 63
LKQD and Minister for Immigration and Border Protection [2018] AATA 2710
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591
LLSY and Minister for Immigration and Citizenship [2011] AATA 334
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
RWDX and Minister for Home Affairs [2019] AATA 123
Re Kirby and Collector of Customs (1989) 20 ALD 369
Re LLSY and Minister for Immigration and Citizenship [2011] AATA 334; (2011) 121 ALD 630
SZOQQ v Minister for Immigration and Citizenship (2012) 200 FCR 174; [2012] FCAFC 40
Sullivan v Civil Aviation Safety Authority (2013) ALD 600; [2013] FCA 1362
Tuimaseve and Minister for Immigration and Border Protection [2016] AATA 924Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148
WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434
SECONDARY MATERIALS
Amending Act and Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) – Sch 5, Pt 2, Item 9
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) – Articles 33(1), 33(2)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (Department of Home Affairs, 6 September 2017) – paras. 1, 2
REASONS FOR DECISION
Deputy President Boyle
29 October 2019
THE APPLICATION
This is an application for the review of a decision of a delegate of the Respondent made on 27 February 2019 to refuse the Applicant a Protection (class XA) (subclass 866) visa under s 65(1)(b) of the Migration Act 1958 (Cth) (the Act).
The protection visa was refused because the Respondent was not satisfied that the Applicant met the criterion in s 36(1C) of the Act for a protection visa. In particular the Respondent 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 ISSUES
The Applicant accepts that he has been convicted by a final judgment of a particularly serious crime within the meaning of s 5M of the Act.[1] I find that to be the case in any event. Accordingly, the only issue for determination is whether the Applicant is a danger to the Australian community for the purposes of s 36(1C)(b) of the Act.
[1] Applicant’s SFIC para. 11.
BACKGROUND
The Applicant is a 28 year old male citizen of South Sudan.
The Applicant’s SFIC says that he is of Shilluk ethnicity and is a Christian. That is not disputed by the Respondent.
On 14 March 2003 the Applicant was granted a subclass 200 Refugee visa offshore (Egypt) as a dependent of a main applicant.[2]
[2] R1, T2 at 7.
The Applicant arrived in Australia on the refugee visa on 5 May 2003.
The Applicant has a significant criminal history as follows:
COURT DATE CHARGE RESULT Dandenong Magistrates Court 27/07/15 Unlawful Assault
Theft
3 Months imprisonment
(concurrent)
Affray (Common Law)
Unlawful Assault
12 months imprisonment
(concurrent)
Recklessly Cause Injury
Unlawful Assault
20 months imprisonment
(concurrent)
Contravene community correction order 3 months imprisonment (concurrent) Dandenong Magistrates Court 10/02/14 Affray (Common Law) Community Corrections Order for 12 months Broadmeadows Magistrates Court 21/05/13 Intentionally Damage Property
Unlawful Assault
14 days imprisonment
(concurrent)
Broadmeadows Magistrates Court 21/05/13 Possess Cannabis 14 days imprisonment
(concurrent)
Broadmeadows Magistrates Court 21/05/13 Breach re 24/04/12
Possess Controlled Weapon Without Excuse
Suspended sentence partially restored Broadmeadows Magistrates Court 21/05/13 Contravene Community Correction Order re 12/11/12
Recklessly Cause Injury
Unlawful Assault
Aggregate 30 days imprisonment
(concurrent)
Melbourne County Court 07/03/13 Breach re 01/06/12
Intentionally Cause Injury
Affray (Common Law)
Recklessly Cause Injury
Assault by Kicking
Theft of a Motor Vehicle
Fail to Answer Bail
Assault and Injuriously Imprison
Aggregate 7 months Dandenong Magistrates Court 12/11/12 Recklessly Cause Injury
Unlawful Assault
Community Corrections Order for 12 months Broadmeadows Magistrates Court 24/04/12 Possess Controlled Weapon Without Excuse 60 days imprisonment (partially suspended with term to be served 42 days)
Following the Applicant’s convictions in 2013 consideration was given to cancellation of the Applicant’s visa. It was decided at that time not to cancel the visa and the Applicant was given a warning by the Department that any further offending could result in his visa being cancelled. While that warning was not amongst the documents produced to the Tribunal, in response to my questions the Applicant advised as follows:
DEPUTY PRESIDENT: …do you remember receiving a notification from the Minister, I think it was in 2013, advising that your visa was not to be cancelled at that stage but that if you reoffended it may well be cancelled in the future?
APPLICANT: Yes. I remember that. I really didn’t take notice because at the time I just thought, you know, it was just something not serious, but obviously later I learned that it’s something to take more seriously and not offend. But by the time that happened it was too late for me, you know?[3]
[3] Transcript at 27.
The Applicant continued to offend and on 25 January 2016 the Applicant’s visa was cancelled on character grounds.[4] The Applicant unsuccessfully sought revocation of that decision to cancel his visa.
[4] R1, T2.
On 23 May 2017 the Applicant lodged an application for the protection visa.[5]
[5] R1, T3.
On 27 February 2019 a delegate of the Respondent refused the application for a protection visa on the basis that the Applicant was ineligible for the grant of a protection visa as the Applicant had been convicted by a final judgment of a particularly serious crime and is a danger to the Australian community.[6] The delegate did find that Applicant met the definition of refugee in s 5H(1) of the Act as there were substantial reasons for believing that as a necessary and foreseeable consequence of the Applicant being returned to South Sudan there is a real risk that the Applicant will suffer significant harm.
[6] R1, T2.
LEGISLATIVE FRAMEWORK
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 under s 500(1)(c)(i) of the Act.
Section 65 of the Act 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)
(the Amending Act) and was intended to codify Article 33(2) of the 1951 Convention Relating to the Status of Refugees (Refugees Convention).[7][7] See Sch 5, Pt 2, Item 9 of the Amending Act and Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) 2.
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.
Section 36(1C) of the Act provides:
(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.
Section 5M of the Act provides:
5MParticularly 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.
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.
On 6 September 2017 the 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 no. 75). Direction no. 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.
Part 2 of Direction no. 75 explains the order 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 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 (Department of Home Affairs, 1 July 2017), at Chapter 14, relevantly provide:
In considering s 36(1C)(b), each of the following elements should be considered:
owas there a crime?
ois the crime considered to be particularly serious?
ohas there been conviction by a final judgement?
odoes the person remain a danger to the community of Australia?
While the circumstances of a crime may indicate that the actions represent a danger to the community, decision makers must determine whether the person remains a danger to the community which may take into account any mitigating circumstances, remorse shown by the applicant and any punishments or rehabilitative corrections applied.
THE HEARING AND THE EVIDENCE
The application was heard on 12 August 2019. The Applicant was represented by
Mr Krohn and the Respondent was represented by Mr Gerrard. Mr Krohn appeared by video link from Melbourne.At the hearing oral evidence was given by:
(a)The Applicant;
(b)Dr Nina Zimmerman, forensic psychiatrist;
(c)the Applicant’s father;
(d)Pastor A;
(e)the Applicant’s sister.
The following documents were admitted into evidence:
·Statement of the Applicant dated 24 June 2019 (Exhibit A1);
·Report of Dr Nina Zimmerman, Forensic Psychiatrist dated 21 June 2019 (Exhibit A2);
·Addendum Report of Dr Nina Zimmerman dated 16 July 2019 and Letter of Request (Exhibit A3);
·Addendum Report of Dr Nina Zimmerman dated 19 July 2019 and Letter of Request (Exhibit A4);
·Statutory Declaration of the Applicant’s father dated 24 June 2019 (Exhibit A5);
·Statutory Declaration of Pastor A dated 25 June 2019 (Exhibit A6);
·Statutory Declaration of the Applicant’s sister dated 25 June 2019 (Exhibit A7); and
·Section 37 Documents received 22 May 2019 (T1-T13) (Exhibit R1).
THE EVIDENCE
The Applicant
The Applicant provided a statement dated 24 June 2019.[8] What could be considered to be statements by the Applicant were also included in the T documents (R1), in particular T3 which was the application for the protection visa and associated documents provided in support of that application. These documents are dated 5 May 2017.
[8] A1.
The Applicant also gave oral evidence at the hearing.
The Applicant’s statement of 24 June 2019 relevantly says:
(a)He accepts responsibility for his offending and acknowledges that he hurt people and is sorry for his actions. He has, throughout the process, never intended to make excuses for or minimise his behaviour.
(b)He offended at a time when he was young and had issues with drugs and alcohol and had friends that were not a good influence on him. He was under the influence of drugs and alcohol, got angry and could not control his behaviour.
(c)
His time in prison and detention has given him time to recognise the things that were contributing to his offending and the opportunity to address those issues.
He now recognises that it was the drugs and alcohol and the bad influence of other people that caused him to make wrong choices.
(d)When he was in prison he attended a 42 hour rehabilitation program and actively sought out a methadone program. It worked because he is no longer on methadone. He has been clean since May 2017.
(e)He no longer drinks. The home brew discovered in his accommodation was not his. He did not drink any of it.
(f)He has not relapsed while in detention notwithstanding that it is a very tough environment. He focuses on positive activities such as listening to and writing music and poetry.
(g)His time in detention has been a wake-up call. He misses his family. His parents recently renewed their vows and his sister had a baby.
(h)His family have been his strongest supporters. They call and send him family photographs. It breaks his heart to see the photographs because he cannot be there. He knows that he has caused them pain and that they are worried about what might happen to him.
(i)
He knows that he has made serious mistakes and that this is his last chance.
The consequences of not being granted a visa are extremely serious to him. He does not know anyone in South Sudan.
(j)He has been talking to his father and Pastor A to put in place a plan for him to return to the community. He has a strong support network through the church and his father and Pastor A have found him a place to do drug and alcohol counselling and support and training so that he can get a job.
(k)He wants to get back to the church where he sang in the choir. He plays the guitar and enjoys music.
(l)His plan is to move back home with his family. When he offended he was not living with his family and did not ask for help. He now recognises the importance of family support.
(m)As he now understands that in the past he has not responded to situations the right way, he will try to remove himself from such situations and will focus on the positive things in his life. He will focus on music and hobbies rather than engaging with people who will get him into trouble.
(n)He has a very close relationship with his mother. His mother and sister have always been there for him. He has tried to support his sister who recently had a baby. He wants to be able to support his sister, her child and his family. He has rebuilt his relationship with his father and is working to rebuild his relationship with his brother.
In the documents provided with his application for the protection visa,[9] the Applicant also said that he feared that if he were returned to South Sudan he would face a risk of harm because of his tribe and ethnic background and because he is Christian. He said that
“I have been told that some of my relatives are still fighting there”.[10]
[9] R1, T3.
[10] R1, T3 at 71.
In cross-examination the Applicant’s evidence was to the effect that:
(a)He was 10 or 11 years old when he arrived in Australia .
(b)He started offending when he was about 14 years old, about three years after he arrived in Australia.
(c) He agrees that he has a significant criminal record, describing it as “pretty bad”, including instances of violence which he attributed to his drug and alcohol use.[11]
(d) He started drinking at 16 years of age and it became a problem when he was about 18 usually as a result of binge drinking.
(e)His use of drugs started when he was about 19 or 20 firstly with marijuana and then when he was about 21 or 22, methylamphetamine and ice which he used every day.
(f)His use of ice and methylamphetamine was not a problem and did not cause his behaviour to change.
(g)He started using heroin when he came out of prison in 2013.
[11] Transcript at 7.
In relation to his offences as an adult, the Applicant’s evidence at the hearing was:
(a)December 2011 convictions for Drunk in a public place, behave in offensive manner public place, Resist police (2 charges), Unlawful assault, fail to answer bail
When the Applicant was cross-examined on the offending for which he was convicted in December 2011, it was put to him that the offences for which he was convicted at that time were Intentionally cause injury, affray, recklessly cause injury, assault by kicking, theft of a motor vehicle and assault and injuriously imprison.
Based on the National Police Certificate those were not the offences of which he was convicted in December 2011.[12] They were the offences of which he was convicted in June 2012 which appear to have been appealed with the appeal result apparently being on 7 March 2013. The Applicant’s evidence was that he was under the influence of alcohol and could not remember the circumstances of the offending put to him.[13] In fairness the Applicant may have been confused because the convictions that were put to him in cross-examination were not the correct ones, however, it still appears that he could not remember the circumstances of his offending relevant to the December 2011 convictions or the June 2012 convictions which were appealed.
[12] R1, T12, 294-6.
[13] Transcript at 9.
(b)April 2012 conviction for Possess controlled weapon without excuse.
The Applicant’s evidence in relation to this charge was unimpressive. Rather than answering straight forward questions, the Applicant was evasive and argumentative. The following exchange took place:[14]
[14] Transcript at 9.
COUNSEL:Okay. You have some convictions of possession of controlled weapons, can you tell me about those offences?
APPLICANT: Which are controlled weapons?
COUNSEL: Well, can you tell me about – – do you remember that you had convictions for weapons?
APPLICANT: What’s a controlled weapon? What is it, a knife? Is it – – what controlled – – is it controlled by a human being or is it – – – -
COUNSEL: HSCK, I’m asking you about your convictions?
APPLICANT: Yes, but – – – -
COUNSEL: So, you have convictions for possession of weapons?
APPLICANT: I have a conviction of controlled weapon but what kind of weapon. You state it for me please.
COUNSEL: Do you remember the circumstances for why you have these convictions?
APPLICANT: I don’t remember but I’ve got the conviction there.
The Applicant’s evidence was that the controlled weapon was a machete that had been found by police in his house but that the machete was not his.[15]
[15] Transcript at 10.
(c)Offence in July 2014 (conviction dated 27 July 2015).
The sentencing magistrate’s description of the offending was:[16]
[16] R1, T12 at 277-278.
On 6 July 2014 the accused and his girlfriend, the co-accused [omitted], were at [train station] to catch a 12.06 am train home. The accused was behaving in a rowdy manner and had previously consumed a large amount of alcohol while socialising with friends in [omitted]. When the train arrived the accused forcefully opened the train doors causing them to rebound back then slam … Once the journey commenced the accused became more vocal, wearing, consuming alcohol from a bottle … The first complainant [omitted] stated to [co-accused] that littering was perhaps not a good idea.
At this time the accused became aggressive and abusive towards [first complainant]. The accused approached [first complainant] and used the back of his hand to slap him across the face causing [first complainant’s] spectacles to break. The accused the [sic] climbed on the train seat and straddled [first complainant] whilst he continued to assault him.
Whilst assaulting [first complainant] a second complainant, [omitted], went over to assist [first complainant] and grabbed the accused from behind to pull him off. Whilst trying to pull the accused off [first complainant] [co-accused] has assaulted [second complainant] by placing him in a headlock and
eye-gouging him to his left eye causing pain and inability to (indistinct) the accused then bit [second complainant] on his forearm and held on with his teeth breaking the skin and causing pain and bruising.
The Applicant did not dispute the facts and said that he appreciated that what he had done was wrong and that he was sorry for his behaviour.
(d)Offence in August 2014 (conviction dated 27 July 2015).
The sentencing magistrate’s description of the offending was:[17]
[17] R1, T12 at 274-276.
On Saturday, 9 August 2014 the co-accused [omitted] attended the [omitted] Hotel on [omitted]. … Approximately five minutes later at 12.50 am another co-accused [omitted] and the accused attended with two other males …
The group had been drinking at an undisclosed location prior to attending the [omitted] Hotel and according to the co-accused were all intoxicated.
The co-accused [omitted] and the accused [omitted] were denied entry to the [omitted] Hotel by the victim, a security guard [omitted] due to being intoxicated. The accused and [omitted] then argued with the security guard [omitted] as to why they weren’t allowed in as some of their friends had been allowed only minutes before and accused him of being racist because he let white couples inside. The male in all black clothing noticed [omitted] was visibly unsteady on his feet and was denied entry several times by security. [omitted] was seen to stumble into the hotel when the security momentarily went inside to the bar and had to be physically removed. [omitted] fell to the ground near the doorway and the accused became angry and aggressive towards the security guard at the door and he defended himself by pushing the accused with the group away with help from other patrons including a witness [omitted] who had come to the door after hearing the commotion.
A fight then ensued and the security was punched several times by the accused, cutting the inside of his lip. The co-accused [omitted] joined the accused and also assaulted the security guard by swinging a belt at the security guard multiple times forcing the security to remove his own belt multiple times forcing the security to remove his own belt and swing it at [omitted] to defend himself…
Co-accused [omitted], who had returned outside during the altercation,
is also seen swinging his belt at the security guard before the commotion settled down and police attended. Police arrived and arrested [omitted] and the accused…
The accused was interviewed by the informant on 9 August 2014. He made the following statements regarding the assault on the security guard, “No-one even landed a punch on him”, “He just hit people. He’s just lucky none of us got our hands on him”, “He was saying that he wanted to take us, that’s how it started”. He alleged that he knew the security guard and that he wouldn’t let him in because of family and tribal problems. “As soon as he came out charging at us we charged at him too.”
The Applicant’s version of the events in cross-examination did not materially differ from the magistrate’s summary, however, the Applicant’s evidence was:[18]
[18] Transcript at 11-12.
APPLICANT: He’s [the crowd controller] probably doing his job, or whatever, but things went left from there and then – – I’m not sure, we started fighting. He took out his belt. I took out my belt too and then my girlfriend took out her belt too and then starting fighting.
COUNSEL:So, you punched him several times? You were in a fight with him?
APPLICANT: I don’t think I punched him at all. I’m pretty sure he was the one that was doing more the fighting.
COUNSEL: But in the sentencing remarks it talks about you punching him a couple of times?
APPLICANT: Yes, because he was the one that hit – – he hit first.
COUNSEL: But you say you didn’t punch him?
APPLICANT: What?
COUNSEL: Did you punch him?
APPLICANT: I did throw a punch at him but none landed.
COUNSEL: Did you say earlier that you had taken out your belt?
APPLICANT: Yes.
COUNSEL: And that was with the intention of – – – -?
APPLICANT: That was the intention because he pulled out his belt first but – – – -
…
COUNSEL: So, in the sentencing remarks the police say that when they interviewed you you said no one even landed a punch on him, he just hit people. He’s just lucky none of us got our hands on him. What did you mean by that?
APPLICANT: Because I don’t know what I said there. He’s the one that landed that – – that was hitting first. Obviously, he was pushing us back and he was hitting at the same time. If we hit him, we would have been charged with something else.
COUNSEL: What did you mean when you said he’s just lucky none of us got our hands on him?
APPLICANT: I’m not sure what I meant by that. By that time, I was probably drunk. When I’m drunk, I say silly things.
…
COUNSEL: What’s your reaction to that statement now?
APPLICANT: Silly, not smart.
COUNSEL: Like threatening?
APPLICANT: They shouldn’t have even interviewed me when I’m drunk anyway so – – isn’t that the law?
(e)Offence in February 2015 (conviction dated 27 July 2015)
The sentencing magistrate’s description of the offending was:[19]
[19] R1, T12 at 273-274.
On Tuesday, 10 February 2015 at approximately 3.30 pm the accused was observed by the victim [omitted] in [omitted]. The victim observed the accused urinating in public, he requested him to stop. The accused immediately became aggressive and confrontational stating to the victim,
“Do you want to have a go?” The victim felt intimidated by the accused and began to leave the area. As the victim walked away he turned to observe the accused quickly approaching. The accused threw a closed fist punch to the victim’s forehead causing the victim to fall to the ground. The punch caused a laceration to the forehead of the victim. The victim’s Ray-Ban sunglasses valued at $200 were knocked from his head in the course of the assault. The accused picked up the sunglasses and then left with them in his possession…
The accused was placed on a community corrections order on
10 February 2014 in which he has failed to comply with the conditions by permitting further indictable offences.
At the hearing the Applicant’s evidence was:[20]
[20] Transcript at 12-15.
COUNSEL: Can you tell me about that incident?
APPLICANT: That was just the dumbest thing I’ve done. It’s not smart.
I was sorry for that person that I done that to. They were just trying to be respectful and I was – – I’ve been drinking all night long and didn’t get sleep.
…
APPLICANT: They would have been right, I was being rude. They were being polite to start but it went to a different level and he was just standing there when I told him I was going to walk off and – – you know, but he keep coming in close and close while I’m – – while I’m taking a piss and then – – – -
COUNSEL: That’s not what the sentencing remarks say. The sentencing remarks say that that person became intimidated by you and tried to walk away?
APPLICANT: Intimidated by me?
…
COUNSEL: Did that person try to walk away?
APPLICANT: No, he didn’t try to walk away. He was just walking in closer and closer and I told him that.
COUNSEL: So, you don’t accept that you followed him?
APPLICANT: No, I don’t accept that.
COUNSEL: But that’s what the sentencing remarks say, they say that you followed him and you punched him in the head?
APPLICANT: How can I follow him when I’m urinating?
COUNSEL: Well, I imagine that wouldn’t have lasted forever, HSCK. So, you don’t accept that you followed him and you punched him in the head?
APPLICANT: Yes, I don’t accept.
COUNSEL: Do you accept that you punched him in the head?
APPLICANT: Yes, I accept that I punched him.
COUNSEL: That when he fell down his sunglasses came off and you stole those sunglasses? HSCK?
APPLICANT: Yes, I hear you, just thinking.
…
COUNSEL: Just in relation to those sentencing remarks, HSCK, the Judge in that matter, or the court in that matter, described your criminal history as littered with violence. You’d have to accept that, wouldn’t you?
APPLICANT: Well, do you accept that? I have to accept it, it’s there on paper, yes.
COUNSEL: But that’s what the court just said about you. Well, I’m interested in your reaction to that, your appreciation of your past. Do you accept that you’ve had a significantly violent past?
APPLICANT: Yes, I accept that. I feel bad too for the people that I’ve done it to because it’s always at the wrong time.
COUNSEL: So, I’d just like to explore that a little bit more. You say always at the wrong time?
APPLICANT: Always at the wrong time when I’m drunk and not in the right state of mind, you know, but, other than that, pretty sure everybody will tell you that I’m a great guy. I know myself I’m a great guy myself.
COUNSEL: Except when you’re drunk?
APPLICANT: Yes. That’s why I haven’t been drinking for the last four years, even though I’m in here, it doesn’t mean that I was still break into my habit when I get out, if I get out of here.
…
COUNSEL: Okay. I’m asking you, having regard to what the courts and the psychiatrist have said about your past, do you accept that in the past you represented a danger to the community?
APPLICANT: Represented a danger to the community?
COUNSEL: Do you think you were a danger to the community when you were drinking?
APPLICANT: No.
COUNSEL:Do you think you were a danger to the community when that drinking led to violent incidents?
APPLICANT: Not to the community.
COUNSEL: Or the person who caught you when you were urinating, he’s a member of the community, isn’t he? The passengers on the train?
APPLICANT: I’m a member to community myself.
COUNSEL: So, you don’t accept that proposition?
APPLICANT: No.
COUNSEL: So, you don’t think you were a danger when you were using drugs, getting drunk and assaulting people in places like trains, hotel and out in the community, you don’t accept that proposition?
APPLICANT: No.
The sentences imposed by the court in July 2015 totalled 38 months imprisonment to be served concurrently meaning that the actual term of imprisonment was 20 months (see [8] above). The magistrate in sentencing made the following observation:[21]
I take into account in making that sentence and reaching that decision your prior history, you’ve received numerous dispositions from this court including the option of judicial monitoring and a correctional order. Your prior history, which dates some nine pages, for a man so young is littered with violence.
[21] R1, T12 at 284-285.
The Applicant was also cross-examined about incidents that have occurred while the Applicant has been in prison and detention.
COUNSEL:Now, you’d also accept, wouldn’t you, that you’ve been involved in a number of incidents whilst in prison and in detention?
APPLICANT: Yes, I accept.
COUNSEL: And, for the most part, they have been minor incidents?
APPLICANT: Yes.
COUNSEL: And you’ve denied some of those offences and you’ve admitted others?
APPLICANT: Yes, of course.
The Applicant was asked about an incident involving a fellow prisoner [omitted] in September 2013. He admitted hitting [omitted] but said that [omitted] had attacked him first.
The Applicant was also asked about his involvement in a remand centre riot in 2015.
His evidence was:
COUNSEL: There’s also an incident in 2015 where you were involved in a remand centre riot; do you remember that?
APPLICANT: Yes, I remember that. I remember I wasn’t involved in it too.
COUNSEL: But you were charged and you pleaded guilty?
APPLICANT: Yes, I was – – yes, I was charged with it because I was sentenced at that time. I know if I pleaded guilty to it, I’ll get it concurrent.
COUNSEL: But now you say that you weren’t involved in it?
APPLICANT: I can say clearly that I wasn’t involved. They say that I was involved but I wasn’t involved. I said that the whole way through.
COUNSEL: Well, you didn’t when you pleaded guilty, did you?
APPLICANT: I did say that the whole way through, even when I pleaded guilty.
I did tell them I was not involved in any type of way, all they try to get me doing is just – – because of the rocks I was holding in my hand, they thought I was going to throw it at a correction officer, which I told them, look at the footage, I never done anything like that. If you see me through the whole footage, through the whole night, I was just walking around.
The Applicant also agreed that he had been involved in fights in immigration detention and in prison. He was cross-examined on a number, but not all, of the incidents that were referred to in his lawyer’s letter of 18 February 2019.[22] That letter referred to the following incidents and provided the following explanations:
[22] R1, T10 at 177-187.
While in prison
1. 16 September 2013: another inmate claimed that the Applicant had assaulted him. His explanation was that he had asked the other inmate to ‘settle down’ as he was being noisy which resulted in the other inmate attacking the Applicant.
2. 8 November 2013: a claim was made by another inmate that the Applicant had threatened him. The Applicant said that the entry in the record was the first that he had heard of that claim and he has no recollection of such an incident.
3. 19 June 2015: another inmate reported that the Applicant and other inmates wanted to stab and bash him. The Applicant denies the allegation and says that the prison record shows that the claims could not be substantiated.
4.
June 2015: accused of being in remand centre riot. Claims that he was just walking around “playing with rocks” and had no intention of throwing them
(see [35] above).
5.
14 October 2015: Riot between Sudanese and Asian groups in detention.
He was stabbed by an Asian detainee but claims that he did nothing and does not know why he received punishment.
6. 3 December 2015: Dispute between Sudanese and Asian groups which started with a Sudanese calling an Asian a dog. This escalated into a physical fight in which the Applicant became involved.
While in immigration detention
7. 28 December 2016: reported for punching another detainee in the face twice. Said that the incident related to a television in the dormitory and that the other detainee “provoked me and made fun of my size and then we got into a fight”.
8. 8 January 2017: Home brew found in Applicant’s accommodation. Applicant denies that it was his or that he drank any.
9. 10 January 2017: Reported for verbally abusing a detention services officer. The Applicant denies the charge and says that the canteen lady “was being very disrespectful” and that he asked her “why she was being so mean” and it must have been her who made the report.
10. 19 February 2017: The Applicant was witnessed by a detention services officer punching two detainees in the head. Arising out of a confrontation between Asian and African detainees, the Applicant says that an Asian detainee made racial slurs “so I punched him”. He realises that he should not punch people and that this was a “terrible thing to do”.
11. 19 February 2017: Alleged that the Applicant threatened to harm a detention services officer and instigate a riot among African detainees. Arising out of the other incident on the same day, the Applicant denies saying anything about a riot.
When cross-examined on this incident the Applicant’s evidence was:
APPLICANT: That was just that they were moved – – getting involved in other people’s problems they shouldn’t be doing, yes, that was just one – – one of them should have not got done – – got involved in that because it was not my issue to get involved with it.
COUNSEL: Now, it said that you admitted punching him – – – -?
APPLICANT: Yes.
COUNSEL: - – – – after he made a racial slur, is that right?
APPLICANT: Yes, I admit, yes. Which was wrong, I should not have got involved in the first place.
12. 9 March 2017: reported that he removed a sign from a door prohibiting detainees entry and abused a detention services officer who attempted to stop him. Applicant says that he has no recollection of this incident.
13. 19 May 2018: Applicant assaulted another detainee by pushing him onto a table and punching him several times in the head. The Applicant says that this was in response to the other detainee forcibly taking a USB stick from the Applicant. He says that “I should not have retaliated, again, detention is a very tense environment. I am a large person and for this reason often seen as aggressive”.
When cross-examined on this incident the Applicant’s evidence was:[23]
[23] Transcript at 19.
APPLICANT: …I recall that incident, but I – – that one I’d been trying to tell the officers, “Youse need to do your job and get this person out of here since he’s starting a problem with the whole unit”, but the officers kept bringing him back and bringing him back. And I said that in my report too, as you can see. Right or wrong.
COUNSEL: But do you agree that you punched that – – – -?
APPLICANT: Yes, yes, I punched him. I punched him, yes. But before I punched him I told the officers, “Get him out of here. He’s starting everybody.” Officers saw him take the USB out of my hand, grabbed it out of my hand, physically grabbed it out of my hand, and the officer didn’t do nothing.
14. 16 June 2018: The Applicant and another detainee attacked a third detainee. The Applicant denies that this was an attempt to steal a television but rather related to “a dispute”. He says that he is sorry “for all of the fighting in the past”.
When cross-examined on this incident the Applicant’s evidence was:[24]
[24] Transcript at 19-20.
APPLICANT: That was a dumb move. I wasn’t being smart at that time.
COUNSEL: What do you mean by that?
APPLICANT: I wasn’t smart at that time. That’s just when I just came out of prison. Just came out of prison. I wasn’t really focused on what I wanted to do.
…
COUNSEL: You have said it’s a dumb move, but I want to know exactly what you say happened?
APPLICANT: I say it’s – – it’s just not acceptable, what I done. It’s not right. Whatever happened over the TV is not acceptable.
COUNSEL: So you got into a fight with this person?
APPLICANT: Yes.
COUNSEL: Did you punch this person as well?
APPLICANT: No, just pushing person.
COUNSEL: Just pushing?
APPLICANT: Just pushing.
COUNSEL: The concern for the respondent, HSCK, is that this isn’t the distant past. This isn’t 2015 we’re talking about, when – –
for the last violent conviction. This is last year and the years before that. You are still getting involved in fights when you say you’re provoked, up to last year?
APPLICANT: This year, can you tell me if I got into any fights then, please? Is there any report of me getting into any fights, please?
…
COUNSEL: Well the question for this tribunal, HSCK, is whether or not
- – – – you represent a danger. And it’s a danger – – – -?
So it’s all about – - – – – in respect of violent incidents?
APPLICANT: So what about the people who try to attack me?
That doesn’t have no concern for me, it’s about people.
You’re concerned about people, not my concern.
While in prison the Applicant failed four drug tests. The last of the failed tests was in May 2017. The Applicant’s evidence at the hearing was:[25]
[25] Transcript at 23.
COUNSEL: So you had four failed tests?
APPLICANT: Yes. I admit it. Yes.
COUNSEL: And why did you – – and you used heroin in prison?
APPLICANT: Yes.
COUNSEL: And why did you use heroin in prison?
APPLICANT: Just going through some bad times, that’s it.
COUNSEL: Dr Zimmerman says that you require long-term drug and alcohol counselling. Do you accept that?
APPLICANT: Yes.
The Applicant was cross-examined on his rehabilitation. Counsel took the Applicant to two participation certificates issued in 2017. The first certificate, dated 24 July 2017,
was headed “Substance Use Program (12-hour Psycho-educational Program)”.[26]
The program was run on 21 and 24 July 2017. This certificate describes the program as:
The 12-hour psycho-educational program is offered to prisoners who have a history of substance use. It aims to provide participants with information, education, knowledge and understanding of drug use that will improve participants’ informed decision making.
[26] R1, T10 at 234.
The second participation certificate, dated 31 July 2017, was headed “Healthy Lifestyle Plan (12-hour Psycho-educational Program)” and advised that the program was run on
28 and 31 July 2017.[27] This certificate describes the program as:
This program is offered to prisoners who have a history of substance use. It aims to provide participants with information to reduce the risk of drug use whilst in prison and upon release. This program includes the development of awareness about relapse and strategies for prevention of relapse.
[27] R1, T10 at 235.
The Applicant’s evidence in cross-examination on these two programs was:[28]
[28] Transcript at 20-21.
COUNSEL: Can you tell me how long it was?
APPLICANT: It was a 42 hour one and a 24 hour. One of them took eight weeks, the other one pretty short, four weeks.
COUNSEL: Well, the substance use program says it was a 12 hour program?
APPLICANT: Yes. Just because it says 12 hour, that doesn’t mean it’s 12 hour. It’s broken within weeks and stuff. Does it say on that how many weeks it took or how many days it took?
COUNSEL: It says two days?
APPLICANT: Two days?
COUNSEL: Do you remember doing that?
APPLICANT: Yes, I remember doing that.
COUNSEL: What did you learn from it?
APPLICANT: I don’t know. Contemplating, pretty much, contemplating or you contemplate on not relapsing.
COUNSEL: And what have you taken from that course that you employ in your future?
APPLICANT: Learning not to relapse. Like, the last time I relapsed was before I had the drug test in 21 May 2017. That’s when the drug test result came in. Before that, since I came in I’ve never touched anything. And that was 2017, that’s about – – – -
…
COUNSEL: And what did you learn from the Healthy Lifestyle Plan course?
APPLICANT: Being active.
The Applicant was also asked what other courses he had taken while in prison or immigration detention. His evidence was that he had undertaken an IT course and, it seems, although it was not clear, an English course.[29] In relation to those programs the Applicant’s evidence was that the main reason that he undertook them was to keep busy while in prison and to get away from the intensity of the detention unit.
[29] Transcript at 21.
The Applicant also thought that he had undertaken another course or courses while in prison that ran over 24 and 42 hours. The Applicant could not find any certificates relating to this course or these courses, but thought that the 24 hour course (which he thought he had taken twice) was in drug and alcohol and anger management.[30] He thought that he had undertaken these courses in 2015.
[30] Transcript at 22.
The Applicant also gave evidence in relation to the methadone program that he started while in prison. His evidence was:[31]
[31] Transcript at 22.
COUNSEL: Now, you have also said that you were on the methadone program whilst in prison, is that correct?
APPLICANT: Yes, I was. Yes.
COUNSEL: Was that prison or detention?
APPLICANT: Detention. I mean, it started in prison 2017. In September.
COUNSEL: September 2017?
APPLICANT: And then as soon as I arrived in [detention centre], I stopped it straight away.
COUNSEL: Why did you stop it?
APPLICANT: Just jumped off it. I didn’t need it anymore. I felt confident that I’m not using any drugs, I’m not doing anything. Just should be healthy because I was putting on weight too, so needed to get back healthy.
COUNSEL: I have some concerns that that’s not a particularly long time to be on the methadone program. Most people are usually on the methadone program for at least 12 months?
APPLICANT: That’s for their choice. If they feel like they’re going to relapse that happens, but I didn’t feel like I was going to relapse. And I haven’t relapsed and how long has that been? A year maybe.
In cross-examination the Applicant was also asked about the steps that he had taken to get drug and alcohol counselling. He said that he had tried to make arrangements but that programs would not accept people while they were in detention because it was not known when they would be getting out. He also said that his family had been looking for programs for behaviour and anger management but could not say which organisations his family had contacted.[32]
[32] Transcript at 23.
When asked in cross-examination how he would avoid relapsing into offending if he were to be released, the Applicant said that he would live with his parents, would be more engaged with his family and that he wanted to “be there” for his sister.[33]
[33] Transcript at 24.
In relation to programs that the Applicant intended to undertake, his evidence was that he intended to undertake anger management and drug and alcohol programs. His evidence was that he was also going to be engaged with his father’s church.
It was put to the Applicant in cross-examination that the programs that the Applicant had undertaken while in prison were not of much use as he had continued to demonstrate violent behaviour and had failed drug tests. His evidence was:[34]
APPLICANT: I didn’t – – I didn’t say I learned. I didn’t say I learned. I said I picked up some things. You can’t learn within 12 hours of something. You can’t learn those things quickly like that. You need actually somebody to sit down with you, not with a big group where you can’t pick up most of the stuff, because it’s not only me giving ideas, it’s other people too bringing ideas and writing them on the board and you pick up little things that you can take with you.
COUNSEL: So the programs in 2015, they were group programs?
APPLICANT: They were group programs, yes. They were group programs, they weren’t individual ones. They weren’t somebody sitting down, talking to you about how they can help you properly, it’s just as many people they can get in a group, what comes out. And it’s not the teacher bringing out ideas herself or himself, it’s everybody bringing ideas of not relapsing when there’s other users there too, you know?
DEPUTY PRESIDENT: Just on that last point, HSCK, would you say that the programs that you did do were of little help to you?
APPLICANT: Yes. Yes, exactly, yes.
[34] Transcript at 25.
Dr Nina Zimmerman
Dr Zimmerman provided three reports dated 21 June 2019 (A2), 16 July 2019 (A3) and
19 July 2019 (A4). In her report dated 21 June 2019 Dr Zimmerman advised that she:·is a consultant forensic psychiatrist;
·obtained her medical degree from the University of Melbourne in 1990;
·has been a Fellow of the Royal Australian and New Zealand College of Psychiatry since 2002 and is an accredited member of the Forensic Faculty of the College;
·obtained a Master’s Degree in Medicine (Psychiatry) from the University of Melbourne in 2004;
·obtained a BA majoring in criminology from La Trobe University in 2017; and
·has been involved in evaluating risk and risk management in relation to transition of offenders back into the community.
In her report dated 21 June 2019 Dr Zimmerman advised:
[7]He appeared frank and open and did not seem guarded or evasive…
…
[9]His thoughts were well organised and there was no formal thought disorder present… There was evidence of paranoid ideation such that he described trying to keep physical distance from everyone and never allowing anyone to stand behind him to protect against potential attack…
…
[13][The Applicant] recalled first getting into trouble with police when he was fourteen and stole an item from [omitted]. He remembered being locked up on his eighteenth birthday and said that it then became a regular occurrence, with frequent convictions throughout his twenties. He said that his offences including driving offences being drunk in a public place, assaults and thefts. He also said that he has a history of breaching CCOs.
[14]He informed me that all his assaults have occurred at times when he has been intoxicated. “When I am sober, I don’t see the point of violence.”
When intoxicated, he said that he has been violent in a number of settings when he feels that he, his friends, his girlfriend or his sisters are being put down. He remembered an incident when he got involved in a fight on a train because another man was “mouthing off” at his girlfriend.
[15] [The Applicant] informed me that he has served four prison sentences.
In 2012, when he was about twenty-one, he was remanded after a machete was found at his home after police had been informed that he had made a threat to kill. He was subsequently released on a Community Correction Order. He told me that he breached the Order the following year and spent eight months in prison in 2013. He stated that he was out of prison for the whole of 2014 but then received a twenty-month sentence for a string of offences in 2015. Whilst serving this prison term, riots occurred at the Metropolitan Remand Centre and he was subsequently convicted of participating, serving a final period in prison before being returned to detention. [The Applicant] stated that he refused to return to his cell during the prison riot and picked up a rock but did not throw it or cause any harm.
Information from other sources relating to forensic history
[16] The Protection Visa Decision Record indicates that [the Applicant] was convicted of possessing a controlled weapon and received a partially suspended sentence when he was twenty-one. The same year he was convicted of intentionally and recklessly causing injury, affray, assault by kicking, theft of a car and injuriously imprison, receiving twelve months of community work. The following year he was convicted of breaching his community order and he was sent a counselling fetter regarding his visa.
At twenty-three, [the Applicant] was convicted of affray, receiving a community Corrections order. The following here [sic] he was convicted numerous assault charges, theft, affray, recklessly causing injury and breaching his CCO, resulting in a sentence of twenty months prison…
[17] The Corrections Victoria VISA assessment indicates a number of incidents that [the Applicant] was involved in whilst in prison.
The overwhelming majority of these were ‘minor incidents’. There were four positive drug tests out of fourteen. He was stated to have attempted or threatened to assault others on two occasions and was involved in the [omitted] riots in June 2015. I note that [the Applicant] was assaulted by others on several occasions… The only incident serious enough to warrant significant penalty was his participation in the riot in 2015 for which he was sentenced to fifteen months with a non-parole period of five months.
[18]… He stated that there were no programs to address anger or drug use in detention but his first priority if he is given a visa will be to link in with programs because of his past history of anger and fighting…
…
[55]…
1.I have used the tool the HCR-20 version 3, a structured professional judgement Instrument that adopts a simple narrative approach to formulating risk based on the clinician’s assessment of a patient in conjunction with risk factors that have been empirically derived. It ls important to note that these risk factors have been drawn from nomothetic studies of populations. Risk evaluation is, by its nature, imprecise. It pertains to considering the likelihood, seriousness and imminence of future behaviour- that is, it is related to the future.
Risk is dynamic (changes over time) and it is contextual …
The HCR-20 involves a consideration of historical risk factors. Looking at [the Applicant’s] history, he has a clear pattern of violence in his adolescence and adult years that has occurred in a number of settings (school community and in institutions). His violence has included threat and acts of violence, and has been motivated by both a desire for material gain and a desire for revenge against perceived slights against family and friends. [The Applicant] also has a sustained history of non-violent antisocial behaviour including thefts.
His history also demonstrates some difficulty in his relationships. Although he maintained a long-term relationship with a partner, it was characterised by mutual substance misuse and angry exchanges.
He has maintained relationships with family members although admits to falling out with his brother. [The Applicant] reported a significant history of problems with work, likely to be due to a combination of his lifestyle of heavy substance abuse but also to his cognitive limitations.
In terms of mental illness, [the Applicant] has no formal history of illness… I also note the likelihood of a mild intellectual disability or Acquired Brain Injury.
[The Applicant] revealed problems with attitudes supportive of violence. While he stated that he knows that alcohol makes him behave in a violent manner that he would not otherwise do, he also expressed the belief that it is appropriate to respond to slurs against his sisters, girlfriend or friends with violence.
[The Applicant] has had significant problems complying with and benefiting from conditions and interventions. As well as breaches of orders that he has been on, [the Applicant] struggled to recall the information that was conveyed in groups targeting drug and alcohol misuse.
In terms of clinical risk factors, [the Applicant] demonstrated partial insight into the factors associated with his offending. He recognised that both alcohol and associating with previous associates would increase the chance of him engaging in violence and/or offending in the future. However, he also continued to express a view that violence· was an acceptable way to try to defend others, denigrating his brother for his anti-violence stance. That said, there was no indication of recent problems with violent ideation or intent, either from my interview with him or in clinical records.
…
Finally, with regard to the area of risk management, [the Applicant] was able to set appropriate goals for release to the community – – keeping close relationships to his family, avoiding past associates that he drank and offended with, finding work possibly as a hair-dresser with his cousin, avoiding drugs and alcohol, attending counselling as required and attending a counsellor to address his history of violence if directed to do so... There are reasons to be cautious about the likelihood of future treatment/supervision compliance because of historical difficulties in this area. However, I believe that interventions offered/mandated in the past have not taken into account [the Applicant’s] likely cognitive impairment. Attending group counselling aimed at those without his problems are not surprisingly going to have limited benefit and fail to engage him in the same way that mainstream schooling failed to engage him. Appropriately tailored interventions stand a much greater chance of success in building rapport and achieving therapeutic goals. Such interventions would clearly need to be guided by a neuropsychological assessment of [the Applicant’s] intellectual functioning and any impairment or acquired brain injury… Lastly, in terms of [the Applicant’s] ability to cope with future stress, the main concern would be that he may fall back into using drugs – – particularly alcohol – – in order to manage stress. It is vital that he be linked in with a service to minimise this risk and it will be of benefit that he has now experienced a prolonged period of coping with the stresses of detention and separation from family without resorting to alcohol.
Having considered historical, clinical and risk management factors as they apply to [the Applicant], I believe that he poses a moderate risk of re-offending if he were released to the community without any interventions in place.
4.I have considered the prospects for rehabilitation in [the Applicant’s] case. There is no doubt that opportunities for rehabilitation have been unsuccessful in the past on repeated occasions. However, with appropriate targeting of interventions (after an assessment of his functioning has occurred) and an assertive outreach case-management model of care delivery and coordination, I believe that his greater maturity (he is now twenty-seven), the stark realisation of what his future could hold and his significant period of abstinence places him in a better position than he has previously been in to make the most of interventions and address his criminogenic needs,
(Original emphasis.)
Dr Zimmerman’s reports dated 16 and 19 July 2019 dealt with the Applicant’s capacity to engage in the Tribunal hearing and whether it would be preferable to have the hearing in Melbourne and for the Applicant to be in Melbourne where he could have family support in person.
By letter dated 17 July 2019 the Applicant’s lawyers wrote to the Respondent’s lawyers (copied to the Tribunal), requesting that the Applicant be transferred to Melbourne and that the hearing take place in Melbourne. By letter dated 18 July 2019 (copied to the Tribunal) the Respondent’s lawyers responded to the Applicant’s lawyer’s request advising that the Respondent would not transfer the Applicant to Melbourne as requested and advised that, in their view, the Tribunal did not have the power to make an order requiring the Respondent to transfer the Applicant.
By letter dated 26 July 2019 the Applicant’s lawyers sought an interlocutory hearing on the application to have the Applicant and the proceedings transferred to Melbourne.
That interlocutory hearing was listed for 1 August 2019. The Applicant provided written submissions on 29 July 2019 and I heard the application on 1 August 2019.
I determined that I did not have the power to direct the Respondent to transfer the Applicant to Melbourne. Further, as I was of the view if the Applicant was to remain in Western Australia, it was preferable for the hearing to be in Western Australia and for the Applicant to appear before me in person with the Applicant’s lawyers appearing by video link from Melbourne. That accorded with the approach taken by Deputy President Forgie in Tuimaseve and Minister for Immigration and Border Protection [2016] AATA 924. Accordingly, I did not make an order transferring the matter to the Melbourne Registry of the Tribunal.
Counsel for the Respondent put to Dr Zimmerman in cross-examination that the conclusions that she expressed in her report of 21 June 2019 were “cautious” to which
Dr Zimmerman responded:[35]
[35] Transcript at 42-44.
DR ZIMMERMAN: Yes, I think I would always – – particularly in the area of risk assessment where it’s impossible to make definite predictions about what might happen in the future,
one needs to be cautious in terms of judgment.
…
it is always wise to be a little circumspect. You cannot say this definitely will or won’t happen in the future.
COUINSEL: …Is it your assessment that his drug use would be connected to his offending?
DR ZIMMERMAN: Yes, in particular his alcohol dependence, yes.
COUNSEL: Right. Do you see the alcohol and drug use as two distinct matters or are they inter-related?
DR ZIMMERMAN: I think they’re inter-related, but often with clients you will find that one or other substance is their preferred substance of abuse. So he certainly tried a number of different drugs over his life, but it seemed to be the alcohol that he used in – –
to greatest excess and consistency.
COUNSEL: Right. You noted that whilst he was in prison he had four positive tests out of 14. What is the significance of that?
DR ZIMMERMAN: When he was in prison he resorted to using drugs, he said to cope with the stresses in prison. I don’t have the actual nature of the drugs that he used, but he certainly used substances and was quite open about that.
…
COUNSEL: So is it – – in terms of looking at his risk, is it of concern that he relapsed using drugs when he was in prison because he was feeling stressed?
DR ZIMMERMAN: It certainly is, yes.
Dr Zimmerman’s evidence was that she did not think that it was of particular concern that the Applicant had not remained on the methadone program for an extended period because the Applicant did not have a particularly heavy pattern of abuse of opiates, noting however, that when he was in prison he did use heroin on at least one occasion, and also buprenorphine, which is also an opiate. Her evidence was, however, that the Applicant still required long-term drug and alcohol counselling.[36]
[36] Transcript at 43.
Dr Zimmerman agreed that in the past the rehabilitation programs that the Applicant had undertaken in prison were of little effect. She put this down to those programs not being targeted enough and also because of the Applicant’s cognitive difficulties he had not been able to take on board some of those interventions and retain them. She did say that because the Applicant was now older and was now facing the stark realisation of what the future could hold, he is at the point where interventions may be more successful than they were in the past.[37]
[37] Transcript at 44.
Dr Zimmerman agreed that while the Applicant now had some insight into violence not being an appropriate response, as she noted in her report of 21 June 2019, “he also expressed the belief that it is appropriate to respond to slurs against his sisters, girlfriend, or friends, with violence”. She agreed that his insight was only partial and that concerns remained.[38]
[38] Transcript at 45.
In relation to her view of the risk of the Applicant re-offending, Dr Zimmerman was of the view that the on-going counselling following an assessment by a neuropsychologist to assess his cognitive functioning was important and that future interventions would need to be targeted at a level that enables him to engage in benefits.[39] She also thought that it was vital that the Applicant continue alcohol and drug counselling.
[39] Transcript at 46-47.
At the conclusion of Dr Zimmerman’s cross-examination the following exchange occurred:[40]
[40] Transcript at 48.
COUNSEL: You have stated your belief that without those interventions, he poses a moderate risk of reoffending?
DR ZIMMERMAN: Yes. I have.
COUNSEL: To be clear, that is a moderate risk of violent reoffending?
DR ZIMMERMAN: Yes.
COUNSEL: I suppose, to be completely clear, that would be a moderate risk of relapsing into substance abuse, which in turn would lead to violent reoffending. Is that probably the accurate way of putting it?
DR ZIMMERMAN: Well, I think that is the most likely scenario. Yes.
In re-examination Dr Zimmerman opined that:[41]
I think that there is no doubt that if he were to be released from detention and moved into a pro-social environment, if you like, where he is with family members, with his cousin that he talked about staying from some of his anti-social peers, then certainly, the stressors that have resulted in him turning to drugs in the past would be much reduced, compared to when he is in prison, he is surrounded by other offenders, many of whom are using drugs. And tough years are stressful environment for anybody to be in. So, yes, certainly there would be less stressors if he were to be released into the community.
…
If HSCK were using drugs at the time when I performed the assessment, or had been using in the last few months, the risk would be much higher than what it is. The fact that he has been abstinent from substances for – – and I think it is nearly 12 months, but that may not be precisely correct. But for a significant period – – a very significant period of time [since May 2017] and it has a significant impact on the likelihood of him returning to reoffending if he – – yes, just having had that period of abstinence.
[41] Transcript at 49.
Applicant’s father
The Applicant’s father provided a statutory declaration dated 24 June 2019 (A5) and gave evidence at the hearing. In his statement the Applicant’s father stated that:
·he was born in South Sudan in 1963. He is a pastor of his Anglican church;
·there is conflict in South Sudan. Many of his family members have been killed in the conflict in South Sudan;
·he has no close relatives in South Sudan;
·he fled Sudan because he was being targeted and his wife and children fled shortly after he did;
·he was separated from his family for many years;
·once settled in Australia his wife and children received support from the Sudanese community and the church;
·the Applicant settled in well until he fell in with the wrong crowd when he was 16 or 17. When he was offending he was spending a lot of time away from home;
·the Applicant’s friends and girlfriend were a bad influence. No other members of the family drink alcohol or take drugs and have not been in trouble with the police;
·he is aware of his son’s offending and that he has hurt people and believes that his offending is linked to his drinking and drug use;
·he tried to support his son during his period of offending but his son’s girlfriend kept pulling him back into offending;
·his son needs help to treat his alcohol and drug problem, not to be labelled as a danger to the community. He will do everything he can to support the Applicant;
·he has been working with the church pastor to ensure that supports are in place for his return to the community and have looked for work programs and educational opportunities. They have looked for community drug and alcohol programs and counselling for the Applicant;
·as he is a pastor of the church, members of the church community have offered help to support the Applicant when he is released into the community;
·the Applicant is kind and has strong bonds to the community. The Applicant intends to go back to school;
·he was a pastor and nurse in Sudan and then the Netherlands and has worked with people who are ill and/or have substance abuse. He believes that his son is committed to turning his life around; and
·his son does not know anyone in South Sudan.
At the hearing the Applicant’s father’s evidence was that:
·he was been a reverend for 10 years and also works as a care assistant in an aged care home. He worked as a nurse and medical assistant for 10 years before coming to Australia;
·the Applicant is close to his ethnic community and to his church community;
·his church runs a drug and alcohol counselling group every Friday and is also involved in programs run specifically of Sudanese;
·things would be different now if the Applicant were to be released back into the community because he does not have the bad influence of his girlfriend;
·the Applicant has changed since he has been in prison, he is sorry for what he did and says that as the youngest it is his job to look after the parents;
·he has contact with the Applicant every day. He is more of a friend now rather than a father;
·the Sudanese community in [omitted] is strong;
·the Applicant is committed to changing his life, he has calmed down now and his family and community will support him;
·
the Applicant will live with his mother, father and sister, if he gets a visa.
The Applicant’s sister has a one year old child; and
·the community will offer the Applicant work. He will support the Applicant in getting counselling.
Pastor A
Pastor A provided a statutory declaration dated 25 June 2019 and gave evidence at the hearing. In his statutory declaration Pastor A stated that:
·he is a pastor and has been involved with the South Sudanese community in Australia since 1999 and is the chair of a children’s charity which predominantly supports community development projects in South Sudan;
·he has known the Applicant since 2003. He was the sponsor of the Applicant’s father’s visa application to Australia;
·the Applicant and his family had a long and difficult wait in Egypt before getting visas to Australia. The Applicant was separated from his father and was traumatised;
·given the Applicant’s traumatised childhood it is not surprising that he has struggled in Australia;
·he has spoken to the Applicant and his father on a number of occasions and thinks that the Applicant is remorseful and understands that his actions are not acceptable. The Applicant turned to drugs and alcohol because of the pressure in his past;
·
he does not believe that the Applicant is a danger to the community “if he is given the right support that his family, community and church can provide”.
Strong support can minimise relapse into offending;
·
the Applicant has learned from his imprisonment and the risk of deportation.
He is committed to turning his life around;
·the Sudanese community is committed to getting the Applicant back into the workforce and returning to the church. The Applicant’s loving family is the first line of support. He will provide whatever help he can to ensure that the Applicant readjusts to life in the community. He has already contacted support groups;
·he has travelled to South Sudan many times since 2005 and has grave fears for the Applicant if he were to be returned. He was in South Sudan in April 2019 and the situation is still unstable. He needed two armed body guards to move around the capital, Juba. Food is scarce and expensive and the police extort money to feed their families;
·the city from which the Applicant’s family comes has effectively been wiped out and those remaining live in a United Nations compound for safety;
·there is a real chance that returning to South Sudan would cost the Applicant his life;
·he believes that the Applicant is committed to accessing drug and rehabilitation programs because he does not have another chance; and
·the Applicant’s family and community are committed to supporting the Applicant.
At the hearing Pastor A said:
·if released, the Applicant needs to get involved with the church and he thought that the Applicant’s father was going to do that;
·he hopes to get the Applicant involved in a program called Pivot which works with young Sudanese offenders. He also wants to get the Applicant involved in a program called Caraniche but could not do anything until the Applicant is released;
·he thinks that the Applicant will do a good job in reassimilating but will have to apply himself: “He can’t just drift along”; and
·he has worked with hundreds of people over the last 40 years as a Christian and the last 18 years as a pastor and he has seen a lot of lives turn around “if they just apply themselves” and he thinks that the Applicant can do that.
In cross-examination, Pastor A agreed that he had not seen the Applicant since he went to prison in 2015 and that he had spoken to him by telephone about four to six times since then.
Applicant’s sister
The Applicant’s sister provided a statutory declaration dated 25 June 2019 (A7). She also gave evidence at the hearing. In her statutory declaration the Applicant’s sister stated that:
·she was born in South Sudan in 1988 and presently works for one of the four major banks;
·she came to Australia with her mother and siblings and her father joined them in Australia later;
·the Applicant is the youngest in the family and she went to the same school as he did in Sudan. Because she was closest in age to the Applicant she spent a lot of time looking after and watching over him;
·until he was 16 the Applicant had a good group of friends. When the Applicant was 16 they moved house and he moved school at which time he got in with the wrong crowd. Her and her brother then started to drift apart;
·as he got older the Applicant spent more and more time away from home and it became hard for the family to keep an eye on him. He was a defiant teenager;
·
at 21 the Applicant started dating his girlfriend who was a bad influence on him.
He ceased to have involvement with this family and church;
·she had always known the Applicant as gentle and not a fighter. His then friends and his abuse of alcohol and drugs caused his offending;
·she stays in touch with the Applicant and she has recently had a baby. There are also other nieces and nephews of the Applicant;
·the Applicant has not told her the full details of his offending because he is embarrassed. She will support him if he is given another chance. She is living with her parents and her baby. She is still on maternity leave and would be able to keep an eye on the Applicant and assist with his reintegration if he is granted a visa;
·the Applicant has told her that he intends to get counselling and qualifications;
·she is determined to support him and he has matured and realises the mistakes that he has made; and
·the Applicant’s visa issues have been devastating for both the Applicant and his family.
At the hearing the Applicant’s sister’s evidence was that:
·there are no longer any secrets between her and the Applicant. He has now grown up. He is now a different man to who he was when he was 18;
·before he was moved to the detention centre in Western Australia she visited him and since his move to Western Australia she has spoken to him two or three times a week;
·there is no alcohol in the family home. If she thought that he was drinking outside the home she would talk to him; and
·the Applicant has changed in that he is now more open. She does not think that the Applicant would go back to drinking if he were allowed to stay.
PARTIES’ SUBMISSIONS
Applicant
The Applicant’s primary submission is that the Applicant is not a danger to the Australian community to a level that precludes him from the grant of a visa under
s 36(1C).In making that submission the Applicant submits that the likelihood of the Applicant causing harm to a member of the Australian community in any manner is low in all the circumstances taking into account the following:
(a)the Applicant’s young age at the time of previous offending and subsequent realization of the impact of his actions on others;
(b)the Applicant has identified and accepted the causal effect of his drug use and alcohol abuse in his offending;
(c)the Applicant taking active steps to address these issues in prison and detention, including through the completion of drug and alcohol programs and other programs;
(d)the Applicant's now prolonged abstinence from drugs and alcohol;
(e)the Applicant having learned a salient lesson from his custodial sentence;
(f)the Applicant now knowing, that should he commit another offence against a person or the community, he faces deportation to a place where he is likely to face serious and/or significant harm;
(g)the specific deterrence of the judicial sentence imposed;
(h)the Applicant's demonstrated remorse and shame;
(i)
other than for the two incidents referred to in Departmental records in 2018,
the Applicant not having had any violent incidents for approximately two years,
and no incidents since him being placed on the methadone program in September 2017;
(j)
the period of over five years he has spent in prison and immigration detention,
his longest time detained, from his most recent arrest, including a period on remand, prison, and then time in immigration detention following cancellation of his visa has allowed him to access treatment and recover from his alcohol and drug addiction;
(k)upon release into the community, as well as living stably in the loving and alcohol free environment of his family (parents, sister, nephew), the availability of various programs and support services to a person in the Applicant’s situation, and the Applicant’s desire to engage with these services; and
(l)the real and meaningful support offered to the Applicant by his family, his church and members of the Sudanese community.
The Applicant submits that s 36(1C)(b) of the Act reflects the terms of Art 33(2) of the Refugees Convention which sets out an exception to the general non-refoulement obligations in Art 33(1). This is a grave matter, as it excludes from protection a person acknowledged to be at risk of grave harm.
The grave consequences of exercising the exclusion provisions, according to the Applicant, are that by the operations of ss 197 and 198(6) of the Act the Applicant will be removed, as soon as reasonably practicable, to a country where there is a real risk of persecution and/or significant harm. These consequences inform the necessary relevant considerations for the Tribunal’s decision.
The Applicant submits that in the present case the question is what is an appropriate level of danger to enliven grounds for refusal of a visa under s 36(1C) of the Act.
This, according to the Applicant, must be examined with utmost care, including by giving the Applicant the benefit of any doubt that may arise as to the prospects of rehabilitation, risk of recidivism and by extension the level of danger, if any, he poses to the Australian community. The Applicant says that the United Nations High Commissioner for Refugees is clear on the application of the analogues exclusion clauses of the Refugees Convention:
Certain acts are so grave as to render their perpetrators undeserving of international protection as refugees. Their primary purpose is to deprive those guilty of heinous acts, and serious common crimes, of international refugee protection and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts...
If the Applicant is unsuccessful in this review two possible consequences follow;
he is either returned to South Sudan (by operation of s 197C of the Act), citing DMH16 v Minister for Immigrationand Border Protection [2017] FCA 448; (2017) 253 FCR 576, or he suffers an effective life sentence, being indefinitely detained as an unlawful non-citizen (by operation of s 189).
The Applicant finally submits that the kind of danger, degree of harm possible,
and probability of harm to the Australian community must be balanced against the harm to the Applicant if he is determined not to meet s 36(1C)(b) of the Act.
In closing submissions counsel for the Applicant submitted that a very strong foundation is required before the Tribunal reaches any state of satisfaction that a person is excluded by s 36(1C)(b).[42]
[42] Transcript at 70.
Counsel for the Applicant also submitted that in construing the phrase, “danger to the Australian community” in s 36(1C)(b) the Tribunal should not follow what Deputy President Tamberlin said in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG). The Applicant submits that Logan J’s comments in the full court decision DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18) should be preferred over the previously accepted statement of Deputy President Tamberlin. Relevantly Deputy President Tamberlin said in WKCG:
25The 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.
26Some 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.
…
31The 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 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”.
The Respondent identifies the relevant considerations in assessing whether the Applicant is a danger to the community by reference to the principles set out in WKCG, in particular [26] of Tamberlin J’s decision (see [76] and [83] above). I agree that they are the appropriate considerations and consider each below.
Seriousness and nature of the crimes committed
The Applicant has a substantial criminal record including violent offending. The Applicant’s violent offending in each case was towards the lower end of severity. His violence did not appear to be pre-meditated or particularly savage and there is no evidence that anyone was severely injured. In that regard I note that there is reference in the sentencing magistrate’s comments to victim impact statements (R1, T12 285), however,
those statements are not before me. That, unfortunately, is invariably the case because of legal restrictions on the release of such statements. The common factors in the Applicant’s violence appear to be intoxication and inappropriate reaction by the Applicant.
It is the case, however, that the Applicant has repeatedly engaged in violent offending over a period of years. His first relevant offence occurred sometime in 2011 when the Applicant would have been 19 or 20 years old. The Applicant was cross-examined on this offence, of which he was convicted in December 2011. His evidence was that he was under the influence of alcohol but could not remember the circumstances of this offending (Transcript at 9) (see [31(a)] above). That in itself is a concern.
Based on the Applicant’s National Police Certificate the next set of convictions were those on 1 June 2012 for intentionally causing injury, affray (common law), recklessly causing injury, assault by kicking, theft of a motor vehicle, failing to answer bail and assault and injurious imprisonment. Although it was put to him in cross-examination that he received these convictions in December 2011 rather than June 2012, counsel did correctly identify these convictions as being the ones that were appealed. His evidence was that he remembered the convictions but could not remember the circumstances of the offending (Transcript at 9). I find it difficult to accept that he could not remember the circumstances of that offending given that he would have appeared in the Melbourne County Court sometime after the events giving rise to the charges. It appears that the Crown may have appealed the sentences imposed for those offences.
It is also not as if these were minor charges. Any claim of remorse for this offending must be given less weight given that he claims not to even remember the circumstances of these quite serious offences.
The next offence to which the Applicant was taken in cross-examination was the possession of the controlled weapon without excuse. As I noted at [31(b)] above, I found the Applicant’s evidence unimpressive. Again, statements of remorse, acceptance of responsibility and reform must be treated with reservation when the Applicant continues to, in effect, deny any wrongdoing. Having initially responded in cross-examination that he could not remember the circumstances of the offence, he then identified the controlled weapon as a machete but denied that it was his. His conviction says otherwise.
There is a conviction in November 2012 for recklessly causing injury and unlawful assault, however, there are no particulars of these offences in the material before me (other than the National Police Certificate) and the Applicant was not cross-examined in relation to these offences. There is no suggestion, however, that the record as set out in the National Police Certificate (R1, T12, 294-296) is not correct.
The next set of convictions recorded in the National Police Certificate (R1, T12, 294-296) are those in the Melbourne County Court on 7 March 2013. I assume that these are not further offences but are the results of the appeal of the convictions or sentences, it is not clear which, recorded in the Melbourne County Court on 1 June 2012.
The next convictions are those of 21 May 2013. These involved violence, offences against property, possession of cannabis and breaches of community correction orders for the conviction for possession of the controlled weapon in April 2012 and the recklessly causing injury and unlawful assault conviction in November 2011. The Applicant was not cross-examined on these convictions.
In February 2014 the Applicant was convicted of affray and given a community correction order. He was not cross-examined on this offence.
The next block of convictions are those recorded on 27 July 2015 for unlawful assault theft, common affray, recklessly causing injury, unlawful assault and contravening community correction order. The details of these offences are set out in [31(c)] and [32] above.
The Applicant himself concedes that his record is “pretty bad” (Transcript at 7). As the magistrate noted in sentencing the Applicant on 27 July 2015:
Your prior history, which dates some nine pages, for a man so young is littered with violence.
(R1, T12 at 284-5)
(see also [32] above)
I find that the Applicant’s criminal record is serious and that the nature of the crimes, particularly the repeated violence, is of concern.
Length of sentences imposed
The Applicant between December 2011 and July 2015 was convicted of over 25 offences for which he received prison sentences totalling some 45 months (some of which were to be served concurrently).
The sentences imposed by the courts, particularly the total of 35 months imposed by the court in July 2015 (the two lesser sentences of 12 months and 3 months to be served concurrently with the 20 month sentence), indicate that the courts have considered the Applicant’s offending to be serious. As the sentencing magistrate noted, the length of the sentences was in part driven by the fact that the Applicant had previously “received numerous dispositions from this court including the option of judicial monitoring and a correctional order” but had re-offended.
Mitigating or aggravating factors
The obvious mitigating circumstances are the Applicant’s relative youth and his disrupted childhood in Sudan and then Egypt prior to his arrival in Australia as an 11 year old. Having noted that, Dr Zimmerman in her report of 21 June 2019 did not identify any psychological issues as having been caused by those years before his arrival in Australia. This was notwithstanding that her report of 21 June 2019 goes into some detail on the Applicant’s history.
Dr Zimmerman’s report does, however, note at [55] that he had told her that his account of his childhood:
…reveals a number of traumatic experiences including significant physical abuse at the hands of an older cousin overseas, physical abuse by teachers in the punitive Egyptian education system and reported exposure to dead bodies left in the open also in Egypt. He reported receiving a serious head injury at fifteen that left him unconscious and fitting and has resulted in paranoid fears that those around him may assault him.
Another potentially mitigating factor is the possibility that the Applicant may have some cognitive impairment. While Dr Zimmerman’s report of 21 June 2019 stated that he “…has no history of being diagnosed with mental illness” ([6] on page 2) she noted at [7] that
“He had a scar under his right eye from an attack that left him unconscious when he was fifteen” and at [9] that “His thoughts were well organised and there was no formal thought disorder present”.She notes at [55] of that report that:
I also note the likelihood of a mild intellectual disability or Acquired Brain Injury
In her report dated 16 July 2019 (A3), Dr Zimmerman advised at [6] that:
[Applicant] described a significant head trauma sustained as a young teenager that resulted in hospitalisation, unconsciousness and seizures. Such brain trauma may result in Acquired Brain Injury. In his case, the ongoing severe drug and alcohol abuse is likely to have aggravated any existing damage.
Accordingly, I take note of the possible brain injury is a mitigating factor in his offending noting, however, Dr Zimmerman’s opinion that his “severe drug and alcohol abuse is likely to have aggravated any existing damage”. That drug and alcohol abuse was within the Applicant’s control which must therefore diminish the mitigating effect that can be given to his possible acquired brain injury.
In relation to the “mitigating” impact that the Applicant’s possible acquired brain injury might have, the task that I am to undertake is to assess whether the Applicant is a danger to the Australian community. While a possible acquired brain injury might be a mitigating factor in considering a sentence to be imposed for an offence, it is difficult to see how a potential physiological condition which may explain behaviour “mitigates” in considering possibility or even probability of re-offending. The exercise that I must undertake is not one of assessing a individual’s offending culpability, it is assessing the likelihood of
re-offending.In relation to the Applicant’s age, while it may be the case that when he first started offending he was in his late teens (he was 20 when he received the convictions in 2011),
I do not accept that he can blame his later offending on youth. It is fair to assume that 22-23 year olds are mature enough to understand the consequences of their actions and appreciate the importance of complying with the law.Risk of re-offending/likelihood of relapsing into crime and prospects of rehabilitation
As Tamberlin J put it at [26] of WKCG:
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 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 any member or members of the Australian community.
And 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 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.
The Applicant undertook some courses while in prison. In his SFIC he identifies the two courses for which participation certificates were issued (R1, T10 at 234 and 235).
These are dealt with at [38]-[42] above.
As noted at [56] above, Dr Zimmerman’s evidence was to the effect that in the past the rehabilitation programs that the Applicant had undertaken in prison were of little effect putting this down to those programs not being targeted enough and also because of the Applicant’s cognitive difficulties he had not been able to take on board some of those interventions and retain them. Her evidence was also that he was more mature now and intervention may have more success as he was facing the stark realisation of what the future could hold. In relation to the Applicant now realising that he could be facing, presumably a reference to his deportation, I note that the Applicant received an unequivocal warning in 2013 that if he re-offended his visa may be cancelled (see [9] above). He committed his most serious offences in short succession after that warning. Saying that he did not think that the warning was serious is hardly an excuse. Committing such serious, violent offences so shortly after receiving a clear warning of the consequences of re-offending, is an indication of either an inability on the part of the Applicant to control his actions or a deliberate disregard for the law.
Dr Zimmerman’s evidence (see [57] above) was that, while the Applicant now had some insight into violence not being an appropriate response, “he also expressed the belief that it is appropriate to respond to slurs against his sisters, girlfriend, or friends, with violence”. She agreed that his insight was only partial and that concerns remained (Transcript at 45).
Dr Zimmerman’s professional opinion of the lack of full insight into the Applicant’s attitude and the offending related to violence is obviously of concern in looking at the likelihood of the Applicant continuing to offend. Also of concern to me is that despite the Applicant’s assertions, and the Applicant’s lawyer’s submissions through the SFIC and orally, that the Applicant now understood the seriousness of his prior offending and was remorseful and did not seek to excuse or minimise his behaviour (see [28(a)] above), his conduct is inconsistent with those claims. The Applicant’s SFIC asserts that, amongst other things, the Applicant’s “demonstrated remorse and shame” (SFIC para. 16.h) and the Applicant in his statement (A1) claims that he “accepts responsibility for [his] offending” (para. 4).
Those claims are hard to accept in light of the Applicant’s conduct and his evidence at the hearing. Rather than accepting responsibility for his offending, the Applicant in a lot of his evidence denied any wrongdoing or sought to excuse or minimise it. When cross-examined about the offences for which he was convicted his evidence in relation to some of the quite serious offences was that he could not remember (the offences for which he was convicted in December 2011 and June 2012 – – (see [31(a)] above), that he had not committed the offence (possession of controlled weapon – see [31(b)] above), again that he had not committed the offence – – (he did not punch the bouncer at all and that the bouncer had started the confrontation (see [31(d)] above)), and in relation to the offence in February 2015 that he had not followed the victim and that it was the victim who had walked in “closer and closer” to the Applicant (see [31(e)] above).
Similarly his evidence in relation to the incidents while the Applicant has been in prison and immigration detention repeatedly denied the incident or sought to paint himself as the victim. His evidence in relation to the most serious of these offences, his involvement in the riot in the remand centre in 2015, was that he was not involved in the riot at all notwithstanding that he admits to having rocks in his hands and pleaded guilty to the charge (see [35] above). His evidence in relation to the numerous other incidents in prison and immigration detention as set out in [36] above shows the same denial of wrongdoing or excuse for the incident.
Dr Zimmerman’s view, as expressed in her report dated 21 June 2019, was that
“There are reasons to be cautious about the likelihood of future treatment/supervision compliance because of historical difficulties in this area”. Dr Zimmerman’s assessment of the likelihood of the Applicant successfully being able to address his drug and alcohol abuse issues, which she agreed was the primary cause of his violent offending, was highly qualified (see [49] above). In particular her conclusion was that:
There is no doubt that opportunities for rehabilitation have been unsuccessful in the past on repeated occasions. However, with appropriate targeting of interventions (after an assessment of his functioning has occurred) and an assertive outreach case-management model of care delivery and coordination,
I believe that his greater maturity (he is now twenty-seven), the stark realisation of what his future could hold and his significant period of abstinence places him in a better position than he has previously been in to make the most of interventions and address his criminogenic needs.
The Applicant’s father, his sister and Pastor A provided statements and gave evidence to the effect that they would provide all of the support that they could to help the Applicant in his rehabilitation and efforts to avoid offending. They clearly love and care for the Applicant and I have no doubt that they would do everything within their power to support the Applicant, however, the obvious observation is that this same family and church support and love was available when the Applicant was offending in the past. Other than the Applicant’s claims now, now that he is facing deportation, that he will avail himself of that support provides little comfort.
In relation to the factors that the Applicant identified in his SFIC (para. 16) as indicating that the likelihood of him causing the community harm is low (see [69] above), I find:
(a)The Applicant is certainly older now than he was when he committed his offences. However, he was not particularly young when he committed his most serious offences in 2014 and 2015. Twenty three year olds are adults and I do not accept that his age in any way explains or excuses his offending. Further, the Applicant’s behaviour while he has been in prison and detention, particularly the repeated violent behaviour, indicates that age has not ameliorated his behaviour.
(b)While it may be that the Applicant has “identified and accepted” the link between his drug and alcohol abuse and his offending, particularly his violent behaviour, that link must always have been obvious yet the Applicant chose not to do anything about it while he was in the community. He can, in my view, take little credit for the late epiphany which seems to be driven by the prospect of his deportation rather than any identification and acceptance on his part.
(c)
The evidence was that the Applicant completed two two-day 12 hour courses
(R1, T10 at 234-5). The Applicant also gave evidence that he had undertaken longer courses in prison before these two courses but could not provide certificates for or details of these courses. Even assuming that he had undertaken these other courses, the evidence of Dr Zimmerman was that they were not effective (see [135] above).
(d)
The Applicant claims a long period of abstinence from drugs and alcohol.
He points to the last negative drug test in prison as being in May 2017. While that is a positive, there is at least one incident of violence (May 2018) after that date which indicates that the Applicant’s violent behaviour may not be solely related to drug and alcohol abuse. While I accept that drugs, and it seems alcohol, or at least home brew, may be readily available in prison and immigration detention, it will obviously be more readily available to the Applicant if he were to be released into the community. Nonetheless, I accept that his apparent abstinence is a factor in favour of the Applicant.
(e)The Applicant says that he has learnt from his custodial sentence. That may be, but I note that he had previously received custodial sentences and they did not appear to alter the Applicant’s criminal behaviour.
(f)I accept that the Applicant now appreciates that he is facing deportation to South Sudan and that if he were to be granted a visa any further offending would most likely result in the cancellation of the visa. I do note again, however, that in 2013 the Applicant was provided with that warning and proceeded to re-offend.
(g)I am not sure what is meant by the “specific deterrence of the judicial sentence imposed”. Previous judicial sentences and interventions do not appear to have had much deterrence effect (see magistrate’s sentencing remarks at [119] above).
(h)In relation to “demonstrated remorse and shame”, I repeat my comments in [131] and [132] above.
(i)It does seem that the last reported incidents involving the Applicant were those in 2018 and that is a factor in favour of the Applicant.
(j)Reference is made to the Applicant receiving drug and alcohol treatment while in immigration detention. It is not clear to what this is a reference as the Applicant’s evidence was that he stopped the methadone treatment as soon as he arrived in immigration detention in September 2017 and that he has not received any treatment since he has been in immigration detention and has not even been able to arrange any treatment on release because people in detention are not accepted into programs because they do not know their date of release (Transcript at 23-24). There is some evidence that the Applicant requested access to drug and alcohol programs while he was in immigration detention (R1, T11 at 236) but it is clear that he has not completed any such programs while in immigration detention.
(k)In relation to the stability that will be provided by his family if he were to be released into the community, I repeat my comments at [135] above.
(l)
In relation to the support offered by his family and the Sudanese community,
I repeat my above comments. In respect of the Applicant’s prospects of employment, I note the comments of Pastor A that he and his church members would be prepared to offer the Applicant work, his work history is not encouraging. Dr Zimmerman in her report of 21 June 2019 noted that he “struggles with employment” (A2 at [55.1]). Basically the Applicant’s evidence was that he has no qualifications or particular skills and has only had two jobs, both for short periods. His evidence at the hearing was:
APPLICANT: I worked a bit when I was with my
ex-girlfriend. I was working here and there.
But I couldn’t even keep a job that well,
you know?
DEPUTY PRESIDENT: What sort of work were you doing?
APPLICANT: I was cabinet maker, pick-packer. Yes.
Two different jobs I’ve had. Good jobs, too. Because – – – -
DEPUTY PRESIDENT: When you say you’re a cabinet maker,
had you done some sort of trade training or vocational training?
APPLICANT: No, I was being trained while I was working.
DEPUTY PRESIDENT: And what was the other one?
APPLICANT: A packer? Process worker.
DEPUTY PRESIDENT: Okay. How long were those jobs? How long did they last?
APPLICANT: The cabinet maker was, like, three months and the other one, four, two. Yes. They said they were going to call me back. They didn’t call me back.
DEPUTY PRESIDENT: So that was two months, was it?
APPLICANT: Yes
It would be unrealistic to expect Dr Zimmerman to give an unequivocal and unqualified opinion on the likelihood of the Applicant reoffending and I note her comment that
“in the area of risk assessment… it’s impossible to make definite predictions about what might happen in the future” (see [4] above). However, the degree of qualification that
Dr Zimmerman attaches to the Applicant’s successful rehabilitation and avoidance of offending is of concern (see [49] and [54] above). Success or failure in Dr Zimmerman’s opinion is dependent on the Applicant undergoing a neuropsychological assessment followed by “appropriately tailored interventions” (noting that group counselling had not been successful) and it being “vital that he be linked with a service to minimise risk”
and that given his “historical, clinical and risk management factors as they apply to
[the Applicant] …he poses a moderate risk of re-offending if he were released to the community without interventions in place” (A2, page 13, [55.1]).I am not satisfied that those “interventions” will be in place or will be maintained if the Applicant were to be granted the visa that he seeks. Unlike release on parole, there is no way of ensuring that those conditions, those interventions, are, and remain, in place to protect the community from the Applicant re-offending.
I am satisfied that the Applicant poses an unacceptable level of risk of danger to the Australian community. In so finding I am mindful of statement of the Federal Court in Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148 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.
The Applicant submits that given the obvious grave consequences to the Applicant, Australia’s international relations and public interest, the level of satisfaction that I should reach in forming the view that the Applicant is a danger to the Australian community is “extremely high” (para. 21) and that the kind of danger, the degree of harm possible and the probability of harm to the Australian community must be balanced against the harm to the Applicant if it is determined that he does not meet s 36(1C)(b) of the Act (para. 22).
I do not agree.
The Applicant cites no authority for the proposition that the level of satisfaction that I must reach is extremely high. I reject that proposition. The appropriate standard is that I must be satisfied on the balance of probabilities (Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; Re Kirby and Collector of Customs (1989) 20 ALD 369; Re LLSY and Minister for Immigration and Citizenship [2011] AATA 334; (2011) 121 ALD 630.
I am mindful, however, of the grave consequences that flow to the Applicant from a finding that the Applicant is a danger to the community. This issue was addressed by Jagot J in Sullivan v Civil Aviation Safety Authority (2013) ALD 600; [2013] FCA 1362 in which at [36] his Honour cited the High Court decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 as follows;
[36] For the same reasons reference to notions of the “preponderance of probabilities” and the need for “exact proofs”, “strong” and “cogent” evidence which peppered the submissions of Mr Sullivan are apt to divert attention from the Tribunal’s functions as defined by statute. This point was made in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) at 282 when they rejected an argument which drew
“too closely upon analogies in the conduct and determination of civil litigation”.
They said:
Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term “balance of probabilities” played a major part in those submissions, presumably as a result of the Full Court's decision.
As with the term “evidence” as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.
Jagot J went on to find at [37]:
[37] The principle which Briginshaw embodies, that there is a rational relationship between the seriousness of the fact to be found and the strength of the material sufficient to prove that fact, is a tool available to the Tribunal to assist it in reaching the correct or preferable decision in the context of administrative decision-making.
Guidance as to the appropriate standard of proof required in such matters before the Tribunal can also be found in a number of cases. In discussing the appropriate standard of proof to be applied by the Tribunal, Deputy President Jarvis in LLSY and Minister for Immigration and Citizenship [2011] AATA 334 at [16] set out the Applicant’s contention as being
... where the visa applicant’s conduct might constitute a breach of the criminal law, the question of whether the visa applicant had committed a criminal offence should be determined in accordance with the criminal justice system, according to the standard of proof beyond reasonable doubt that applies in criminal cases.
He submitted that it was highly inappropriate that an administrative tribunal should make determinations of this kind.
The learned Deputy President rejected that contention and held at [50]:
... The appropriate standard of proof in the present proceedings, which entail whether the non-citizen satisfies the character test, is the civil, not the criminal, standard of proof, to be approached in accordance with the principles in Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336, and that is a further reason why the court hearing the criminal charges would not be affected by the outcome of the present tribunal proceedings. In Briginshaw Dixon J said that when, in civil proceedings, a question arises whether a crime or fraudulent conduct has been committed, the standard of persuasion is the same as upon other civil issues, that is the balance of probabilities. His Honour also said, at 361-362:
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made,
the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”While the above cases were primarily considering the standard to apply to the proof of a material fact, there is no reason why the comments relating to the appropriate standard of proof required in matters before the Tribunal would not apply to establishing the ultimate issue, in this case whether the Applicant is a danger to the Australian community.
In finding, on the balance of probabilities, that the Applicant is a danger to the Australian community, I am, in line with the principles identified above, mindful of the consequences that will flow from such a finding.
I also reject the second of the propositions put forward by the Applicant at paragraph 22 of his SFIC (see [141] above), namely that there is a balancing exercise to be undertaken balancing the possible harm to the Australian community against the harm to the Applicant if the visa is refused. Firstly, it is not clear to me that that is what Logan J is proposing in his judgment in DOB18. I read the relevant passages of his Honour’s decision (see [77]-[78] above) as finding that as a general proposition, given the context of s 36(1C) and the fact that it has the potential to deny protection to a person who would otherwise be entitled to protection, the word “danger” in s 36(1C)(b) should be read to mean “serious danger” or “serious risk of danger”. His Honour seems to be putting that forward as a general definitional or construction proposition, not suggesting that in each case there be a balancing exercise undertaken between the particular risk of harm faced by the visa applicant against the seriousness, and probability of the harm, faced by the Australian community.
Secondly the approach proposed by the Applicant is contrary to the unequivocal statements in SZOQQ including the statement at [20] that “…no “balancing” or “proportionality” is involved in the application of that Article to the facts of a particular case.”
The same conclusion was reached by Jackson J in LKQD (see [104] above).
Direction no. 75
The Applicant submitted that Direction no. 75 had no application in the present case (Transcript at 79) and the Respondent’s position, as put by counsel at the hearing, was that it applied only at the stage of the delegate’s decision but that in the end, according to the Respondent, the position is that it is:
…accepted by the respondent, and even if the tribunal were to find that it needed to go down that path, the only evidence before the tribunal is an express acceptance that the applicant meets that criteria. The point, as the tribunal made, of direction 75 was in relation to concerns raised in BCR16 and DMH17.
Paragraph 1) in Part 2 of Direction no. 75 requires the decision-maker to first assess the applicant’s refugee claims with reference to s 36(2)(a) and any complimentary protection claims with reference to s 36(2)(aa) of the Act “before considering any character or security concerns”. Paragraph 2) of Part 2 of Direction no. 75 directs that where the applicant meets the refugee criteria in s 36(2)(a) of the Act, the decision-maker must consider the ineligibility criteria at s 36(1C) of the Act.
In the present case the delegate’s decision under review specifically addressed the Applicant’s refugee claims under s 36(2)(a) of the Act and complimentary protection claims under s 36(2)(aa) of the Act and found that in both cases the Applicant was owed protection obligations. Not surprisingly, those decisions of the delegate are not sought to be reviewed in this application. In these circumstances, where the original decision-maker’s decisions under those sections is not sought to be reviewed, Direction no. 75 has no application in the Tribunal’s review. The Applicant’s entitlement to protection under
ss 36(2)(a) and 36(2)(aa) of the Act has been decided and is accepted by the Respondent.
DECISION
l find that:
(i)the Applicant has been convicted by a final judgment of a particularly serious crime, and
(ii)the Applicant is a danger to the Australian community; and
(iii)accordingly, the Applicant does not satisfy the criterion in s 36(1C)(b) of the Act.
Accordingly the decision of the delegate of the Respondent to refuse the Applicant a Protection (class XA) (subclass 866) visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 154 (one hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
............................[sgd]............................................
Associate
Dated: 29 October 2019
Date(s) of hearing: 12 August 2019 Counsel for the Applicant: Mr A Krohn Solicitors for the Applicant: Refugee Legal Counsel for the Respondent: Mr A Gerrard Solicitors for the Respondent: Australian Government Solicitor
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