HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1967
•22 June 2020
HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1967 (22 June 2020)
Division:GENERAL DIVISION
File Number:2018/7738
Re: HYTB
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Member Tigiilagi Eteuati
Date:22 June 2020
Place:Brisbane
The decision under review is affirmed
..................[sgd]........................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – decision under review affirmed
Legislation
1951 United Nations Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees
Administrative Appeals Tribunal Act 1975 (Cth)
Corrective Services Act 2006 (QLD)
Domestic and Family Violence Protection Act 2012 (QLD)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Al-Boushama and Minister for Immigration and Border Protection [2015] AATA 5
BCR16 v Minister for Immigration and Border Protection[2017] FCAFC 96
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
DJY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 804
DOB18 v Minister for Home Affairs [2019] FCAFC 63
EWG17 v Minister for Immigration and Border Protection[2018] FCA 1536
HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2019] FCA 1591
Mence and Minister for Home Affairs (Migration) [2019] AATA 1309
Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 6
MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259
MVLW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1557
RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
Tahuriorangi and Minister for Immigration and Border Protection (Migration) [2018] AATA 2158
TYXB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 9
WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
Secondary Materials
DFAT Country Information Report: Sudan dated 27 April 2016
Direction No. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)
Direction No. 84 – Consideration of Protection visa applications
Explanatory Memorandum to the 2014 Protection Amendments
Refugee Law Guidelines (Department of Home Affairs, 1 July 2017)
Complementary Protection Guidelines (Department of Home Affairs)
DECISION
Member Tigiilagi Eteuati
22 June 2020
BACKGROUND
This is an application by HYTB (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) on
31 October 2018 to refuse to grant the Applicant a permanent Protection (Class XA) (Subclass 866) visa (“the Protection visa”) under section 65 of the Migration Act 1958 (Cth) (“the Act”). The application was refused as the delegate found that the Applicant did not meet the criterion in section 36(1C)(b) of the Act for the grant of a Protection visa. This was because the delegate considered that the Applicant, having been convicted by a final judgment of a particularly serious crime, was a danger to the Australian community.
The Applicant is a 29 year old citizen of Sudan who was born in 1991. The Applicant arrived in Australia in September 2009 as a holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa (“GSH visa”). The Applicant’s GSH visa was mandatorily cancelled under section 501(3A) of the Act in August 2016. The Applicant’s GSH visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment. On 18 October 2017, the Assistant Minister for Immigration and Border Protection personally decided not to revoke the cancellation decision.
On 3 November 2017, the Applicant applied for the Protection visa which is the subject of this application. On 29 June 2018, the Respondent invited the Applicant to comment on information that he had been convicted of a particularly serious crime and whether he satisfied the criteria for a Protection visa in sections 36(1C)(b) and 36(2C)(b) of the Act. The Applicant provided written submissions in response to the Respondent’s invitation on
19 July 2018.
On 31 October 2018, the Minister’s delegate refused the Applicant’s application for a Protection visa. Although the delegate was satisfied the Applicant met the refugee and complementary protection criteria in section 36(2)(a) and 36(2)(aa) of the Act, the delegate found the Applicant did not meet the criterion in section 36(1C) of the Act as the delegate found that the Applicant had been convicted of a particularly serious crime and was a danger to the Australian community.
On 5 November 2018, the Applicant applied to the Tribunal for review of that decision.
The Tribunal has jurisdiction to review a decision to refuse to grant a Protection visa pursuant to section 65 of the Act, relying on section 36(1C) of the Act: section 500(1)(c)(i) of the Act.
The matter was heard on 19 June 2019 in the Western Australia Registry of the Tribunal. For the reasons below, I have found that the Minister’s delegate’s decision to refuse to grant the Applicant a Protection visa is the correct decision and I have affirmed that decision.
ISSUES
The issues before the Tribunal are:
(a)Whether the Applicant has been convicted by a final judgment of a particularly serious crime; and if so,
(b)Whether the Applicant is a danger to the Australian community.
LEGISLATIVE FRAMEWORK
Section 4(1) of the Act provides for the object of the Act as follows:
“The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”
Section 4 of the Act provides the following relevant provisions for the advancement of the object of the Act:
“(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
…
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.”
Section 29 of the Act provides that the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, and/or remain in Australia.
A person who holds a visa is a lawful non-citizen: section 13 of the Act. A person who does not hold a visa is an unlawful non-citizen: section 14 of the Act.
An unlawful non-citizen is to be held in immigration detention: section 189 of the Act. An unlawful non-citizen detained under section 189 of the Act, who is not an un-authorised maritime arrival, must be kept in immigration detention until they are removed or deported from Australia, or they are granted a visa: section 196 of the Act. An unlawful non-citizen must be removed from Australia as soon as reasonably practicable: section 198 of the Act.
Section 45 of the Act provides that persons may apply for visas.
Section 46 of the Act provides the criteria for a valid visa application. Schedule 1 to the Migration Regulations 1994 (Cth) (“Regulations”) sets out the specific ways in which a non-citizen applies for a visa of a particular class.
Section 47 of the Act provides that the Minister must consider a valid application for a visa and must not consider an application that is not a valid application.
Section 65 of the Act relevantly provides that, after considering a valid application for a visa, if the Minister is satisfied that,
·criteria for the grant of the visa have been satisfied (including any health criteria);
·the grant of the visa is not prevented by other sections of the Act; and
·any visa application charge payable has been paid,
the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.
The Act provides for both permanent and temporary visas: section 30 of the Act. The Act provides for classes of both temporary and permanent visas. Classes of visas may also be prescribed by regulation.
The Act provides for two classes of Protection visas. Section 35A(2) of the Act provides for permanent Protection visas and section 35A(3) of the Act provides for temporary Protection visas. The visa the applicant applied for was a permanent Protection (Class XA) (Subclass 866) visa.
The criteria for Protection visas are contained in section 36 of the Act and Schedule 2 to the Regulations.
Subsection 36(2) of section 36 of the Act relevantly provides:
“A criterion for a Protection visa is that the applicant for the visa is:
a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…”
I will refer to the criteria in paragraph 36(2)(a) of the Act as the Refugee criteria and the criteria in paragraph 36(2)(aa) of the Act as the Complementary Protection criteria.
Paragraph 36(1C)(b) of section 36 of the Act provides:
“A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
…
(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 that “a particularly serious crime” in section 36(1C)(b) includes a crime that consists of:
·“a serious Australian offence”; or
·“a serious foreign offence”.
Section 5 provides that “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 10 August 2016, the Applicant pleaded guilty to, and was convicted of, ‘contravention of domestic violence order’, an offence under section 177 of the Domestic and Family Violence Protection Act 2012 (QLD) (“DFVP Act”). Section 177(2) of the DFVP Act provides:
“The respondent must not contravene the order.
Maximum penalty—
(a) if, within 5 years before the commission of an offence against this subsection, the respondent has been previously convicted of a domestic violence offence—240 penalty units or 5 years imprisonment; or
(b) otherwise—120 penalty units or 3 years imprisonment.”
While the Applicant had been convicted of three offences of contravening a domestic violence order prior to his 10 August 2016 conviction, the sentencing judge appears to have sentenced the Applicant on the basis that the maximum penalty for the offence was 3 years imprisonment.
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers.
Section 499(2A) of the Act provides that a person or body having functions or powers under the Act must comply with a direction under section 499(1) of the Act.
On 6 September 2017, the Minister for Immigration and Border Protection issued a direction under section 499 of the Act to delegates who consider valid applications for Protection visas under section 47 of the Act and perform functions or exercise powers under section 65 of the Act to grant or refuse to grant Protection visas (“Direction 75”).
In essence Direction 75 provides that in considering an application for Protection visa, a delegate must consider whether an Applicant meets the Refugee criteria in section 36(2)(a) of the Act and the Complementary Protection criteria in section 36(2)(aa) of the Act before considering the disqualifying criteria in section 36(1C) and section 36(2C) of the Act or considering refusal on character grounds under section 501 of the Act.
The Tribunal notes that according to Direction 75, the direction applies to delegates. Unlike other directions, for example Direction 79 and Direction 84, Direction 75 does not apply to decisions of the Tribunal on review. In addition, directions under section 499 do not bind the Minister personally. Thus, Direction 75 does not compel the Tribunal to undertake its own consideration of whether the Applicant meets the Refugee criteria or the Complementary Protection criteria before considering whether the Applicant meets the criteria in section 36(1C) of the Act.[1] This was conceded by the Respondent.
[1] See discussion by Senior Member Furnell in WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38 at [175]. See also discussion by Deputy President Boyle in RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123 at [76] – [78] and HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [151] – [153].
The Tribunal notes that the delegate acted in accordance with Direction 75 and considered whether the Applicant met the Refugee Criteria and the Complementary Protection criteria before considering the disqualifying criteria in section 36(1C) of the Act. The delegate found that the Applicant met the Refugee Criteria in section 36(2)(a) of the Act on the basis that there was a real chance that the Applicant would suffer serious harm on the basis of his Nuba race and related imputed political opinion. The delegate also found criteria that the Applicant met the Complementary Protection criteria in section 36(2)(aa) of the Act as the delegate found that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sudan, there was a real risk that the Applicant would suffer significant harm.
Neither party seeks review of these findings and the Tribunal has proceeded on the basis that the Applicant meets the criteria in section 36(2)(a) and section 36(2)(aa) of the Act.
There is a second direction made under section 499 of the Act which is of relevance in the current proceedings.
On 25 June 2019, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs issued a direction to delegates who exercise powers, inter alia, under section 65 of the Act to grant or refuse to grant Protection visas (“Direction 84”) and by Tribunal Members who review decisions to refuse to grant Protection visas.
Direction 84, like Direction 56 which it replaced, requires section 65 decision-makers to take account of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT reports”), to the extent that they are relevant to the decision under consideration.
The Tribunal has taken account of these documents to the extent that they are relevant to the decision under consideration. The Tribunal notes that as the parties agree that the Applicant meets the criteria in sections 36(2)(a) and section 36(2)(aa) of the Act, and the Tribunal is proceeding on that basis, the country information assessment on Sudan prepared by the Department of Foreign Affairs and Trade is of limited relevance. However, the Tribunal has considered the information in the DFAT report as it relates to potential harm or hardship the Applicant may face if he returned there as presenting a strong incentive for the Applicant not to reoffend in the future if he were allowed to remain in Australia.
The Refugee Law Guidelines (Department of Home Affairs, 1 July 2017) at Chapter 14, relevantly provides under the heading ‘Danger to the community of Australia having been convicted of particularly serious crime’:
“In considering s36(1C)(b), each of the following elements should be considered:
·Was there a crime?
·Is the crime considered to be particularly serious?
·Has there been conviction by a final judgement?
·Does 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.”
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the
documents described in section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“T Documents”), material returned on summons by the Queensland Police Service and Queensland Corrective Services and immigration detention centre records. The Tribunal has also considered information and arguments contained in the Statements of Facts, Issues and Contentions (“SFICs”) filed by the parties. The Tribunal has carefully considered all of the evidence given by the applicant during the hearing before the Tribunal. The most relevant and significant evidence is referred to throughout these reasons for decision.
HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGMENT OF A PARTICULARLY SERIOUS CRIME?
The Applicant’s recorded criminal offending history, as at 31 August 2016, is outlined as follows:[2]
[2] T Documents, PT13, pages 88 – 91, National Police Certificate.
Court Court Date Offence Court Result Beenleigh Magistrates Court 10 Aug 2016 [dfvpa2012] 177(2)(a) contravention of domestic violence order (aggravated offence) (on 12/04/2016) Conviction recorded
Sentenced
Imprisonment: 15mo
Concurrent
Parole release date: 10/09/2019
Sandgate Magistrates Court 23 Jun 2016 [dm] 9 possessing dangerous drugs (on 26/03/2016) Conviction recorded
Fined: $500.00
Time to pay: 28d
Brisbane Magistrates Court 18 May 2015 [dfvpa2012] 177(2) contravention of domestic violence order (on 10/03/2015)
[dfvpa2012] 177(2) contravention of domestic violence order (on 03/02/2015)
On all charges
Conviction recorded
Sentenced
Imprisonment: 8mo
Concurrent
Declare that time spent in pre-sentence custody be deemed as time already served under this sentence – 70 days (10/03/2015 to 18/05/2015)
Brisbane Magistrates Court 18 May 2015 [dfvpa2012] 177(2) contravention of domestic violence order (on 2/12/2014)
[ppra] 790(1) assault or obstruct police officer (on 10/03/2015)
Conviction recorded sentenced imprisonment: 3mo concurrent
declare that time spent in pre-sentence custody be deemed as time already under this sentence – 70 days (10/03/2015 to 18/05/2015)
parole release date: 18/05/2015Conviction recorded
not further punished
Pine Rivers Magistrates Court 11 Feb 2015 [ba] 33(1) failure to appear in accordance with undertaking (on 28/01/2015) Conviction recorded sentenced
imprisonment: 8d
cumulative
declare that time spent in pre-sentence custody be deemed as time already served under this sentence – 8 days (04/02/2015 to 11/02/2015)
parole release date: 11/02/2015Brisbane Magistrates Court 24 Dec 2014 Resentenced for original offence(s) (re: breach of/application against order imposed on 26/05/2014) Resentenced for original offence(s) conviction recorded fined: $300.00
time to pay: 28dBrisbane Magistrates Court 29 Sep 2014 [ba] 33(1) failure to appear in accordance with undertaking (on 18/09/2014) Conviction recorded
not further punishedBrisbane Magistrates Court 05 Aug 2014 [soa] 6(1) commit public nuisance (on 19/07/2014) No conviction recorded
fined: $200.00Time to pay: 2mo
Brisbane Magistrates Court 29 Jul 2014 (re: breach of/application against order imposed on 26/05/2014) Recognised forfeited: $300.00
time to pay: 28dSandgate Magistrates Court 02 Jun 2014 [dm] 10(2)(b) possess utensils or pipes etc that had been used (on 29/04/2014) Conviction recorded fined: $250.00
time to pay: 28dBrisbane Magistrates Court 26 May 2014 [dm] 9 possessing dangerous drugs (on 24/04/2014) No conviction recorded recognisance: $300.00 good behaviour period: 6mo
drug diversionSandgate Magistrates Court 12 May 2014 [dm] 9 possessing dangerous drugs (on 01/04/2014)
[dm] 10(2)(b) possess utensils or pipes etc that had been used (on 01/04/2014)
On all charges
conviction recorded
fined: $500.00
time to pay: 28dBrisbane Magistrates Court 15 Jan 2014 [soa] 6(1) commit public nuisance (on 31/12/2013) Conviction recorded
fined: $200.00
time to pay: 28dBrisbane Magistrates Court 15 Oct 2013 [dm] 9 possessing dangerous drugs (on 21/09/2013) No conviction recorded fined: $200.00
time to pay: 28dBrisbane Magistrates Court 16 Jul 2013 [dm] 9 possessing dangerous drugs (on 08/06/2013) No conviction recorded recognisance: $150.00 good behaviour period: 4mo
drug diversionBrisbane Magistrates Court 3 Apr 2013 [soa] 6(1) commit public nuisance (on 17/03/2013) Conviction recorded
fined: $250.00
time to pay: 1moBrisbane Magistrates Court 12 Jul 2012 [ppra] 791(1) contravene direction or requirement
(on 07/06/2012)No conviction recorded fined: $250.00
in default imprisonment: 3d
time to pay: 2moBrisbane Magistrates Court 21 Jul 2011 [cpca] 252(1) possess tainted property (on 28/062011) No conviction recorded fined: $250.00
in default imprisonment: 3d
time to pay: 2mo
Section 36(1C) of the Act was enacted to codify the effect of Article 33(2) of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”) with the effect that a Protection visa applicant would be ineligible for the grant of a Protection visa if they were a refugee who would have otherwise been excluded from the non-refoulement principle by Article 33(2) of the Refugees Convention.
Article 33(1) of the Refugees Convention provides that:
“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.”
Article 33(2) of the Refugees Convention provides that:
“The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
The Explanatory Memorandum to the 2014 Protection Amendments stated:
“The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa. The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of ‘refugee’ but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa. This criterion is consistent with the ineligibility criteria under paragraph 36(2C)(b) in relation to the complementary protection provisions in the Migration Act.”[3]
[3] Page 12.
The 2014 Protection Amendments created, in the words of the then Minister, “…a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention.”[4] Whereas previously the determination of whether a person was a refugee was made in large part by direct reference to the Refugees Convention, the 2014 Protection Amendments introduced into the Act the legislative machinery to make that determination without having to rely directly on the Refugees Convention, or external interpretations of the Refugees Convention.
[4] Explanatory Memorandum to the 2014 Protection Amendments, page 10.
In Australia, the exclusion in Article 33(2) from the non-refoulement obligation in Article 33(1) of the Refugees Convention, for those “…having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community…” requires a two-step determination. First, there must be a determination of whether a person has been convicted by final judgment of a particularly serious crime. If so, a determination must be made as to whether a person constitutes a danger to the community. The same two step approach applies to the determination of whether a person is excluded for being granted a Protection visa under section 36(1C) of the Act.
As pointed out by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”), this approach is to be contrasted with the approach taken in the United States of America where a person will be taken to be a danger to the community if they have been convicted by final judgment of a particularly serious crime.
As to what constitutes a particularly serious crime, in Australia, the legislature determined that a crime will be a particularly serious crime if it is a crime of a prescribed nature and is punishable by a prescribed period of imprisonment (or particularly serious crimes at least include such crimes). The prescribed nature of a particularly serious offence (in this case a serious Australian offence) is an offence which involves either violence against a person, is a serious drug offence, involves serious damage to property or certain offences relating to immigration detention. If such an offence is punishable by imprisonment for life, imprisonment for a fixed term of not less than three years or imprisonment for a maximum term of not less than three years, the offence is a serious Australian offence and thus is to be considered a particularly serious offence for the purposes of section 36(1C) of the Act.
It is important to note that the sentence which was actually imposed for the offence is not determinative. Rather, the question is what sentence of imprisonment can be imposed for an offence of the type committed.
It is also important to stress that it is not for a decision maker to make their own subjective assessment, unaided by the legislation, as to whether the decision maker considers that the offence committed is not particularly serious. If the offence is of the nature prescribed by the legislation and is punishable by a prescribed period of imprisonment, the offence is deemed to be a particularly serious crime.
If a person has been determined to have been convicted by final judgment of a particularly serious crime, the only remaining question is whether the person is a danger to the Australian community.
As mentioned above the Applicant has been convicted of contravening a domestic violence order on four occasions. Most recently, on 10 August 2016, the Applicant was convicted of contravening a domestic violence order and sentenced to 15 months imprisonment with a non-parole period of five months.
The Applicant’s most recent offence clearly involved violence against a person. In sentencing the Applicant on 10 August 2016, the sentencing judge stated:
“This is the fourth such breach of a domestic violence order involving the same aggrieved. It is a violent breach. It involves you striking the aggrieved to the head on multiple occasions, to the body on multiple occasions, and it involves you dragging her in a way that must have been painful and humiliating. It is a serious example of domestic violence. It may not be of the worst category, but it is an unsavoury incident that would have caused deep distress.”
It is also clear that the offence was punishable by imprisonment for a maximum term of three years, which is, of course, “a term of not less than three years”.
The Applicant argued that because section 177(2)(b) of the DFVP Act provided for a maximum sentence of “120 penalty units or 3 years imprisonment” that it could not be said that the offence was punishable by a maximum sentence of not less than three years imprisonment.
The Tribunal rejects this submission. The existence of an alternative maximum monetary penalty for the offence in no way detracts from the fact that the offence for which the Applicant was convicted was punishable by a maximum period of imprisonment of three years.
The Tribunal is finds that the Applicant has been convicted by a final judgment of a particularly serious crime.
The only remaining issue is whether the Applicant is a danger to the Australian community.
IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?
In WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (“WKCG”), Deputy President Tamberlin, formerly a Federal Court Judge, said the following at [25] to [31] regarding the exclusionary provision in Article 33(2) of the Refugees Convention now mirrored in section 36(1C)(b) of the Act:
“The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:
...
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular Applicant in the particular circumstances of his case is at an unacceptable level of risk....
Counsel for the Applicant submits that as a matter of construction of Article 33(2), it is necessary to show that there is a causal connection between the relevant crime of which he has been convicted, in order to decide whether the refugee can be said to constitute “a danger”. Conversely, the Respondent submits that the correct interpretation of the wording does not include the causal relationship for which the Applicant argues.
As a matter of interpretation, in my view, the reference to the words “having been convicted” operate to limit the class of persons on whom the provision operates and that the question whether a person “constitutes a danger” is a separate additional matter to be independently established. The reference to “having been convicted” is analogous to a prerequisite to the exercise of the power independent of the other criterion. This conclusion is supported by extrinsic material including the Second Reading speech and the relevant Explanatory Memorandum. Therefore, once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community. Of course, the nature and circumstances of the conviction or convictions will generally be highly relevant to the question whether the person can be described as being a “danger”. However, it is not conclusive. It is necessary to look at the person's conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions. In other words, if a person is convicted for a crime of violence and it later transpires that he or she may constitute a danger to the community in another area, such as drug trafficking, such a person may come within the exception provided for in the Article. Accordingly, I agree with the submission made by the Respondent Minister and reject the submission of the Applicant that the particular offences for which the person has been convicted must always somehow be causally linked to the type of danger to the community.
Counsel for the Applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a “real probability” of harm being caused to the community.
The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or 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.” [My emphasis]
In DOB18 Logan J, referring to the above paragraphs of Deputy President Tamberlin’s decision in WKCG, made the following observations at [83]:
“In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a Protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.”
In MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259 (“MHCZ”) Deputy President Rayment and Senior Member Fairall, after discussing the decisions in WKCG and DOB18 stated at [34] and [35]:
“We are not comfortable with the notion that a person may be treated as a present danger to the community merely because one cannot discount the bare possibility that some harm may occur in the future.
In our view, a level of risk is unacceptable if the evidence before the Tribunal points to a present and serious risk, neither remote nor fanciful, of physical harm, or extreme emotional harm (in the sense explained above), to some member or members of the Australian community. The expression “neither remote nor fanciful” is intended to exclude the ordinary hazards of life; the reference to extreme emotional harm is intended to exclude matters of upset, distress or embarrassment, which do not properly fall within the area of relevant harm.”
It has been suggested in decisions of this Tribunal that the decisions of Deputy President Tamberlin and Logan J in WKCG and DOB18 respectively may provide a different or inconsistent meaning of the term “danger”. With the greatest respect, the Tribunal does not consider that there is any necessary inconsistency between the comments by Deputy President Tamberlin and Logan J. Logan J expressed that he would disagree with the view that Deputy President Tamberlin was suggesting that “danger” in Article 33(2) of the Refugees Convention (and by extension in section 36(1C)(b) of the Act) equated to mere “risk” or “possibility”. Logan J did not find that Deputy President Tamberlin had done so. The Tribunal considers that is clear that Deputy President Tamberlin did not equate “danger” to mere “risk”. Rather, Deputy President Tamberlin said that it will be sufficient for “danger” to be established if there is a “real or significant” risk or possibility of harm to one or more members of the Australian community. The Tribunal considers that it is clear that the words “real or significant” qualify both the word “risk” and the word “possibility”. Thus, in order for a person to be a danger to the community the risk or possibility of harm presented by that person must be real or significant. Deputy President Tamberlin found that it was not necessary to establish that it was probable that a person would cause harm for them to be a danger. The Tribunal considers that this is entirely consistent with Logan J’s observations that “danger” means “present and serious risk”.
It is consistent to say that in order for a person to be a “danger” there must exist, at the time of the decision, a present risk which is “real” or “significant” or “serious” which is “neither remote nor fanciful” that the person will cause harm of a sufficiently serious nature (for example “of physical harm, or extreme emotional harm”) in the present or the future. If no such risk is present at the time of decision, it can not be said that a person is a danger. Similarly, if a present risk of future harm relates to a harm which is insufficiently serious, for example a moderate risk of mere “upset” then the person will not be a danger. Conversely, if there is a low risk but one which is none-the-less “real” or “significant” or “serious” of particularly serious future harm, say grave physical injury, then that risk may be sufficient to determine that a person is a danger to the Australian community.
In determining whether an applicant meets the criteria in section 36(1C) of the Act, the decision maker is vested with a fact finding function and not a discretion. If the decision maker is satisfied of the required matters in section 65 of the Act, including that the Applicant meets the criteria in section 36(1C) of the Act, the visa must be granted. If not so satisfied the visa must be refused. In SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 (“SZOQQ”) a majority of the Full Court of the Federal Court (Jagot and Barker JJ) stated at [46]:
“Under s 65(1) of the Migration Act, if satisfied of the required matters, the Minister is to grant a protection visa and, if not so satisfied, is to refuse to grant a protection visa. In other words, the Minister is vested with a fact-finding function but not a discretion. In the respondent’s words, “once the existence or absence of such obligations is determined to the satisfaction of the decision-maker, consequences follow under s 65. There is no room for any exercise of discretionary judgment which would involve weighing the interests of the visa applicant against other considerations”.
The Tribunal notes that the Applicant’s previous visa was mandatorily cancelled under section 501(3A) of the Act and that the Assistant Minister refused to revoke that cancellation under section 501CA(4) of the Act. It is important to recognise that the task in determining whether to revoke cancellation involves the exercise of a discretion and is fundamentally different to the fact finding function involved in determining whether a person is a danger to the community and thus fails to meet the criterion in section 36(1C)(b) of the Act. The distinction between these tasks was discussed at length by Bromberg and Mortimer JJ in BCR16 v Minister for Immigration and Border Protection[2017] FCAFC 96. Relevantly, their Honours stated at [48] to [50]:
“We also accept the appellant’s submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.
In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.
For example, if the Minister is satisfied that the appellant has been “convicted by a final judgment of a particularly serious crime” and “is a danger to the Australian community” (the criterion in s 36(1C)(b)), then s 65 compels the Minister to refuse to grant a protection visa. Whether the risk of harm to the appellant in Lebanon might be real, it will avail the appellant nought if other visa criteria are found not to be satisfied.”
In determining whether a person is a danger to the Australian community there is to be no determination as to whether the danger that the person poses to the Australian community is proportionate to, or balanced against, the potential harm that the person may suffer if they were returned to the country where they fear persecution. In SZOQQ Jagot and Barker JJ rejected an argument by the appellant that in determining whether a person was a danger to the community for the purposes of Article 33(2) of the Refugees convention, the danger to the community must be balanced or proportionate to the consequences of return for the refugee. Their Honours stated at [49]:
“Consistent with the submissions of the respondent, we see the language of Art 33(2), construed in the context of the Refugees Convention as a whole, as intractable. The ordinary meaning of Art 33(2) (subject to one matter) is clear. The benefit of the duty against refoulement in Art 33(1) cannot be claimed by a refugee if the circumstances specified in Art 33(2) are present. The structure and text of the provisions do not permit any balancing exercise…”
It has been accepted that the approach in SZOQQ regarding the absence of a balancing exercise is equally applicable to the interpretation of section 36(1C)(b) of the Act: see for example DOB18 per Logan J at [51] and [52].
In considering whether a person is a danger to the community, a decision maker is not limited to consider the danger to the community of the type of offences that the Applicant has previously been convicted: see WKCG at [29].
The Tribunal considers that in determining whether a person in immigration detention is a danger to the community, the decision-maker is not restricted to considering the risk of harm that a detainee presents to those in immigration detention. The risk must be one that exists at the time of the decision, while the person is in immigration detention, but the risk of potential future harm extends to harm which may be caused to the community if the Applicant is released into the broader community. This is consistent with the analysis of Deputy President Rayment and Senior Member Fairall in MHCZ where the learned Members stated at [22]:
“Third, the Tribunal is required to identify an unacceptable level of risk for the Australian community, not merely the community of fellow detainees and staff within the immigration detention centre. An environment controlled by custodial officers, where the conduct of detainees is monitored and highly constrained, is an artificial environment, and not reflective of the world outside immigration detention… focusing exclusively on the detention environment would distort the task that lies before us.”
Finally, as alluded to above, it is important to assess the type of harm the risk of which occurring is sufficient for a person to constitute a danger to the community. In MHCZ Deputy President Rayment and Senior Member Fairall stated that danger to the Australian community was not limited to physical harm. The learned Members stated at [23] and [35]:
“Fourth, “danger to the Australian community” is not limited to the potential for purely physical harm. Counsel for the respondent suggested that emotional and physical harm are both forms of harm, and that the matter could be determined by reference to potential emotional harm to a third party. We accept that some forms of extreme emotional harm might fall within that description; hurt feelings or embarrassment or extreme awkwardness would not.
…
In our view, a level of risk is unacceptable if the evidence before the Tribunal points to a present and serious risk, neither remote nor fanciful, of physical harm, or extreme emotional harm (in the sense explained above), to some member or members of the Australian community. The expression “neither remote nor fanciful” is intended to exclude the ordinary hazards of life; the reference to extreme emotional harm is intended to exclude matters of upset, distress or embarrassment, which do not properly fall within the area of relevant harm.”
While Deputy President Tamberlin in WKCG outlined a number of considerations which he considered were relevant in assisting the determination as to whether a person is a danger to the Australian community, it is not accurate to consider that the Deputy President enunciated a test for determining whether a person is a danger. Rather, Deputy President Tamberlin stated the question whether a person constitutes a danger to the Australian community is one of fact and degree and in deciding whether a person is a danger to the Australian community, regard must be had to all the circumstances of each individual case. The considerations which Deputy President Tamberlin set out are a list of considerations which may be useful in determining whether someone is a danger to the community. The considerations set out by Deputy President Tamberlin were described in MHCZ by Deputy President Rayment and Senior Member Fairall as “a checklist”. The learned Members stated at [26]:
“…Although his checklist of relevant particulars is sometimes referred to as a “test”, it is really no more than a checklist of relevant considerations where the question of dangerousness has arisen because a person has been convicted of a particularly serious offence. Some of those considerations relate to the offending, its nature, extent, whether there are prior crimes, and so on. There may be other considerations. Although the delegate referred to this decision as involving a “test”, there is nothing to suggest that Deputy President Tamberlin QC thought of this checklist as an exhaustive list, or that the inquiry should be narrowed to focus exclusively on the nature of the offending, for he emphasised in the passage quoted above, at [25] that:
In deciding the question, regard must be had to all the circumstances of each individual case.”
While I am more comfortable with describing the considerations mentioned by Deputy President Tamberlin as guidance rather than “a checklist”, I otherwise agree with the above statement. Ultimately, the question is whether a person is a danger to the Australian community and the guidance in WKCG assists in determining that question by reference to considerations which look to past and present matters of relevance which go to the nature of any future harm that the person may cause and the risk that that harm may be caused.
That being said, the guidance in WKCG has been utilised over the years by decision makers including Tribunal Members to assist in the determining whether Protection visa applicants are a danger to the Australian community: see for example BHYK and Minister for Immigration and Citizenship [2010] AATA 662; MVLW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1557; RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123; HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392; TYXB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 9; and WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38. In addition, the guidance in WKCG regarding the considerations of relevance in determining whether a person is a danger has been referred to in a number of decisions of the Federal Court and has not been determined to be erroneous: see for example EWG17 v Minister for Immigration and Border Protection[2018] FCA 1536; LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2019] FCA 1591 (“LKQD”) and DJY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 804.
In determining whether the Applicant is a danger to the Australian community I will be guided by the considerations in WKCG. In considering the considerations outlined in WKCG it is not required that I consider each in turn 'in a strict fashion': see LKQD at [13] per Jackson J.
Seriousness and nature of possible future harm
The Applicant has been dealt with by a court in relation to criminal offences on 17 occasions between 2011 and 2016. At the hearing the Applicant indicated that he had pleaded guilty to every offence for which he had been convicted or found guilty.
As mentioned above the Applicant’s most recent offence clearly involved violence against a person. In sentencing the Applicant on 10 August 2016, the sentencing judge stated:
“This is the fourth such breach of a domestic violence order involving the same aggrieved. It is a violent breach. It involves you striking the aggrieved to the head on multiple occasions, to the body on multiple occasions, and it involves you dragging her in a way that must have been painful and humiliating. It is a serious example of domestic violence. It may not be of the worst category, but it is an unsavoury incident that would have caused deep distress.”
The Queensland Police Service Court Brief (“Court Brief”) in relation to this offence relevantly stated:
“… .The witnesses stated to police that they saw the aggrieved walking down Flinders Street towards the park. They further saw the respondent walking after the aggrieved, yelling out intelligible phrases at the aggrieved. Upon reaching the aggrieved, the respondent began ‘laying into her’ (the aggrieved). By this, the witnesses meant that the respondent began punching the aggrieved to the head and body, causing her to fall to the ground. The respondent began dragging the aggrieved across the ground, until such time that a further witness intervened.
Police spoke to the respondent, who denied the allegations, stating that the aggrieved threw herself to the ground…
The aggrieved was conveyed to the Logan Central Police Station where an examination was conducted by ‘Scenes of Crime’ which revealed abrasions to the aggrieved’s neck, face, chest and knees. The aggrieved also had red drops on her top which appeared to be blood…”
In addition to this most recent, and most serious, offence involving his former partner, the Applicant has been convicted or found guilty of a number of offences involving his partner.
On 5 August 2014, the Applicant was found guilty of commit public nuisance on 19 July 2014, no conviction was recorded and the Applicant was fined $200.
The Court Brief in relation to this offence, to which the Applicant pleaded guilty, relevantly stated:
“On arrival police observed a male with his hands on a female and was acting aggressively towards her. Later established that male and female were in a de facto relationship and female was pregnant.
The male began waving his hands in the air spitting and yelling at the police as they approached. The defendant had visible blood around his mouth and on his body.
Police have separated the male and female and the male was identified as [Applicant’s name], who is the defendant in this matter.
The defendant was observed to be unsteady on his feet and was slurring his speech and smelled of alcohol. The defendant became of noxious and continued swearing despite being asked numerous times to stop by police.
Police identified themselves and told the defendant to calm down and sit down. The defendant has attempted to ignore the police yelling ‘Fuck off you fucken cunts, you have no right’. The defendant then walk towards police in an aggressive manner, waving his hand yelling, ‘Come on’. Police told the defendant to stop, however the defendant continued yelling and being aggressively towards police. Police have then used open hand tactics to restrained the defendant where he continued to yell and resist against police.
Police have then hand cuffs the defendant due to his violent nature and seated him on the ground where he was advised that he was arrested for being a public nuisance.
Police attempted to question the defendant however the defendant refused to answer questions and was becoming highly agitated.
Police identified a witness to the defendant’s violent aggressive behaviour on the street prior to police arrival. The witness provided information that she was concerned about the defendants violent behaviour and being in the middle of the street.”
The information in the Court Brief was put to the Applicant by the Respondent’s solicitor. The Applicant indicated that he and his former partner had an argument because his former partner accused him of seeing another woman. He said that he put his hands on his former partner because she was shouting at him. The Applicant indicated that he was drunk at the time and did not know what he was saying. The Applicant indicated that his relationship with his former partner ended that day. He indicated that from that day he had no further contact with her. He also indicated that he had not seen his son since that day in July 2014. However, it is clear that the Applicant has had further contact with his former partner as he went on to contravene domestic violence orders made for the benefit on four subsequent occasions the last being on 12 April 2016.
A domestic violence order was imposed on the Applicant on 18 November 2014 for the protection of the Applicant’s former partner. The domestic violence order required the Applicant to be of good behaviour towards his former partner and not commit domestic violence against her.
On 18 May 2015, the Applicant was convicted of contravention of domestic violence order on 2 December 2014 and was sentenced to 3 months imprisonment. On the same day, the Applicant was convicted of two other counts of contravention of domestic violence order, one on 3 February 2015 and the other on 10 March 2015. The Applicant was sentenced to 8 months imprisonment for these offences. On the same day the Applicant was convicted of ‘assault or obstruct police officer’ on 10 March 2015, a conviction was recorded and no further punishment imposed.
The Court Brief in relation to the first contravention of domestic violence order offence, to which the Applicant pleaded guilty, indicated that on 2 December 2014 the police attended upon the dwelling of the Applicant’s former partner. The Applicant was present at the former partner’s dwelling. The court brief relevantly stated:
“The named aggrieved [former partner’s name] stated that an argument started over the respondent not respecting the aggrieved. The respondent has stated that he will “Fuck her up and kill her”. The aggrieved’s mother one [former partner’s mother’s name] and department of child safety personnel have have arrived for a welfare check on the couple’s child and have waited outside the dwelling. The aggrieved has received a slap to the arm which one the aggrieved’s mother has seen and other witnesses have heard from outside. The witnesses have then called Police. The aggrieved has then exited the property and waited with the witnesses for Police to arrive.
Police were called at around 10:40 on 2 December, upon arrival at the aggrieved’s address the defendant was located in the front room of the house sat down. The defendant was observed by Police to be clenching his fists and posturing in an aggressive manner. Police offered the defendant the opportunity to speak to them in relation to this matter which he has refused…”
The information in the Court Brief was put to the Applicant by the Respondent’s solicitor. The Applicant indicated that he had attended his former partner’s residence to collect some of his clothes. He indicated that his former partner began shouting at him and an argument ensued. He said that he slapped his partner because she was shouting at him. He then said that he had not actually slapped her but that she was holding him and that he had pushed her away from him. The Applicant denied that he had said to his former partner that he would “Fuck her up and kill her”.
The domestic violence order was varied on 2 December 2014 to prohibit the Applicant from attending the residence or workplace of his former partner.
The Court Brief in relation to the second contravention of domestic violence order offence, to which the Applicant pleaded guilty, relevantly stated:
“The aggrieved stated that she and the defendant began arguing about their baby at approximately 5:10 PM that day, at the job address. The defendant began verbally abusing the aggrieved. The aggrieved has then left to the residents and walked outside to a neighbouring unit complex and sat down to give her and the defendant time to calm down. A short time later, the defendant has approached the aggrieved and continued to verbally abuse her telling her to go home as she was embarrassing him. The aggrieved refused and the defendant has grabbed the aggrieved’s hair and pulled her up onto her feet. At this time the aggrieved has returned home with the defendant.
Police took up a witness who stated he observed the aggrieved sitting down on the side of the road. The defendant has then approached the aggrieved with a baby in his arms. He was unsure if the defendant pushed the aggrieved at that time and the defendant walked back down victory Street. A short time later the defendant returned to the aggrieved’s location without the baby. At this time the aggrieved started walking away from the defendant. The defendant has then grabbed the aggrieved and attempted to pull her down victory Street. The aggrieved appeared to attempt to get away from him however the defendant continued to pull her down victory Street. The witness did not see the defendant or aggrieved after this time.”
The information in the Court Brief was put to the Applicant by the Respondent’s solicitor. The Applicant indicated that he had attended his former partner’s residence that day in order to see their son. He said that he was aware that attending his former partner’s residents was in contravention of the domestic violence order. He said that he was aware that grabbing his former partner’s hair and pulling her to her feet was also a breach of the domestic violence order.
The Court Brief in relation to the third contravention of domestic violence order offence for which the Applicant was convicted on 18 May 2015, relevantly stated:
“The defendant both was present at the aggrieved’s home and was not of good behaviour towards her. Police entered the dwelling at [redacted] and spoke with the aggrieved. She stated that the defendant had attended her address but had only come to the front fence. Police then spoke with other witnesses who stated that they knew of the defendant and observed him both in the dwelling and the yard of [redacted] just prior to police arrival. Further the witnesses state that they could hear the male and female arguing.
Witness 1 states that they heard the defendant state “I’ll hit that baby”.
Witness 2 states that they saw the defendant both in the yard and in the dwelling of [redacted] while the defendant and aggrieved were verbally fighting.”
The information in the Court Brief was put to the Applicant by the Respondent’s solicitor. The Applicant indicated that he had attended his former partner’s residents in order to collect some of his belongings. At first, he indicated that while he was approaching his former partner’s residence the police arrived and he ran off. He later said that he was on his former partner’s property but did not enter the house. The Applicant indicated that his partner had been yelling at him. He denied that he had stated “I’ll hit that baby”. However, he admitted that he had pleaded guilty to the offence as detailed in the Court Brief.
The Court Brief in relation to the ‘assault or obstruct police officer’ offence, to which the Applicant pleaded guilty, stated that when police had attended the Applicant’s former partner’s residence in relation to conduct for which the Applicant was convicted of the third count of contravention of a domestic violence order, the Applicant failed to stop after being ordered to do so by the police. Upon being ordered to stop a second time the Applicant ran away from police.
In addition to these offences the Applicant has been convicted or found guilty of seven relatively minor drug-related offences, two other public nuisance offences, contravene direction or requirement, possess tainted property, and two counts of failure to appear in accordance with undertaking. The Applicant also had a $300 recognisance forfeited for breach of good behaviour requirement and was later resentenced for the original offence.
The two other public nuisance offences involved the Applicant yelling at, and acting aggressively towards, police officers. However, these offences were not treated as being particularly serious as no conviction was recorded for either offence and the Applicant was fined $250 and $200 respectively.
The Applicant also pleaded guilty to two incidents of breach of discipline under the Corrective Services Act 2006 (QLD) which were committed in prison. The first breach was committed on 24 May 2016. On that occasion, the Applicant was observed to be involved in a fight with another prisoner and to assault him. The Applicant pleaded guilty to “acting in a way contrary to the security or good order of a corrective services facility” and was reprimanded.
The second breach was committed on 21 June 2016 and involved an assault on another prisoner. The Applicant pleaded guilty to “acting in a way contrary to the security or good order of a corrective services facility” and was subjected to separate confinement for a period of three days.
At the hearing, the Applicant admitted that he was involved in a fight with another prisoner on each occasion. He said that on each occasion the other prisoner swung at him initially and that he retaliated by punching back. The Applicant’s representative submitted that low weight should be attributed to these offences as for people in prison and immigration detention, “if you don't stand up for yourself, you will get flogged in there”. The Tribunal has taken this into account as a mitigating factor for these offences.
The Minister’s representative also sought to rely on four incidents of violent behaviour recorded by immigration detention centre staff between December 2016 and September 2018. As these incidents involved behaviour which could result in the Applicant being charged with criminal offences, the Tribunal adjourned briefly to allow the Applicant’s representative to explain the privilege against self-incrimination to the Applicant. When the hearing recommenced, the Applicant chose to avail himself of that privilege and to not answer questions in relation to the recorded incidents. As the Applicant is entitled to the privilege against self-incrimination and as the Applicant has not, as yet, so much been charged with any offences arising from the incidents, the Tribunal places no weight on the allegations made against the Applicant by detention centre staff. However, the Tribunal considers the existence of the reports of misbehavior including violence by the Applicant mean that the Tribunal is reluctant to make a positive finding that the Applicant has been of good behaviour since he has been in immigration detention.
The Tribunal considers that the Applicant’s contravene domestic violence order offences, viewed together are very serious. The Tribunal considers that they evidence a pattern of behaviour of increasing violence towards the Applicant’s former partner. That is also reflected in the increase in sentence imposed on the Applicant for each of the offences. On each occasion the Applicant was verbally abusing his former partner.
On the first occasion involving his former partner, where he was found guilty of public nuisance, he was putting his hands on her and acting aggressively towards her. No conviction was recorded and he was fined $200.
On the second occasion, the first conviction for contravention of a domestic violence order, the Applicant threatened his former partner by stating that he would “Fuck her up and kill her” and slapping her arm. The Applicant was convicted and sentenced to 3 months imprisonment.
On the third occasion, the Applicant attended upon his former partner’s residence in breach of the domestic violence order, abused her verbally, grabbed her by the hair and pulled her to her feet and dragged her down the street.
On the fourth occasion, the Applicant attended upon his former partner’s residence in breach of the domestic violence order and began arguing with his former partner. A witness heard the Applicant state “I’ll hit that baby”. For these two offences the Applicant was convicted and sentenced to 8 months imprisonment.
On the final occasion, the Applicant struck his former partner to the head and body on multiple occasions and “dragging her in a way that must have been painful and humiliating”. The sentencing judge described the offending as a serious example of domestic violence and said that, while it may not be of the worst category it was an unsavoury incident that would have caused deep distress. The Applicant’s former partner suffered abrasions to her neck, face, chest and knees. The Applicant was convicted and sentenced to 15 months imprisonment.
The Tribunal has considered the sentences imposed upon the Applicant, especially those relating to his violent offending. Sentences imposed by courts can aid in determining the seriousness of offending. As mentioned above, the sentences for the Applicant’s domestic violence related offending have increased as has the seriousness of those offences. For the first contravention of the domestic violence order the Applicant was sentenced to 3 months imprisonment. For the second and third contraventions of the domestic violence order the Applicant was sentenced to 8 months imprisonment. Finally, for the last contravention of the domestic violence order the Applicant was sentenced to 15 months imprisonment. The Tribunal considers that the Applicant’s last sentence for imprisonment of 15 months was indicative that the offending was serious. This is especially so considering that according to the sentencing judge the maximum sentence available was three years imprisonment. The Tribunal agrees with the sentencing judge that while the offending may not have been of the worst category, it was a serious example of domestic violence.
The Applicant’s violent behaviour has not been restricted to offences against his former partner. The Court briefs for the above offences, and the other public nuisance offence, also indicate that the Applicant has acted aggressively towards police. In addition, the Applicant pleaded guilty to two breaches of discipline in May and June 2016 which were committed in prison. Those offences involve the Applicant fighting with and assaulting a fellow prisoner.
This Tribunal has repeatedly stated that domestic violence is a serious matter with serious consequences: see for example Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 6 at [48]; Mence and Minister for Home Affairs (Migration) [2019] AATA 1309 at [79]; Al-Boushama and Minister for Immigration and Border Protection [2015] AATA 5; Tahuriorangi and Minister for Immigration and Border Protection (Migration) [2018] AATA 2158; and Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601 at [53].
The report by the Australian Institute of Health and Welfare referred to by the Respondent indicates that ‘family domestic and sexual violence is a major national health and welfare issue that can have lifelong impacts on victims and perpetrators’. The same report indicated that in 2015, for women aged 15 and over, partner violence contributed to 223 deaths and that domestic violence was a cause of depressive and anxiety disorders and suicide and self-inflicted injuries.
In the present case the Applicant’s offending was aggravated by the fact that there were repeated incidents of domestic violence resulting in repeated contravention of domestic violence orders.
If the Applicant were to reoffend in manner similar to his conduct which gave rise to his offences for contravention of a domestic violence order, the Tribunal finds that this would likely result in physical and psychological harm to victims and possibly severe harm.
The Tribunal finds that the most likely victims of any future harm would be the Applicant’s former partner, any future partners, and possibly members of the community more generally. The Tribunal notes that the Applicant claimed that he separated from his partner in 2014 and then went on to commit multiple incidents of domestic violence against her after they had separated. In those circumstances, the Tribunal is not confident that the fact that the Applicant is separated from his former partner will mean that he will not reoffend against her. The Applicant and his former partner share a child, which may mean that they may come into contact if the Applicant is granted a form of custody or visitation rights in the future.
The Tribunal has had regard to the Applicant’s other offending including his numerous minor drug-related offences. The Tribunal considers that these offences appear to be related to the Applicant possessing marijuana and marijuana paraphernalia for his own marijuana consumption. As such, the Tribunal is not particularly concerned with the repetition of those sorts of crimes in and of themselves. However, the Tribunal is concerned that a return to drug consumption may affect the risk that the Applicant will continue to engage in violent behaviour. This will be discussed further below.
Similarly, the Tribunal is not particularly concerned with the repetition of behaviour leading to the Applicant’s offences for committing public nuisance in and of themselves. However, the Tribunal is concerned that some of the behaviour engaged in during those incidents has been aggressive, including towards police, and a repeat of that type of aggressive behaviour could escalate into serious physical violence.
Overall, the Tribunal considers that the Applicant’s repeated offences of contravene a domestic violence order are very serious, they involved repeated and increasing levels of violence against the Applicant’s former partner. The Tribunal finds that if the Applicant engages in conduct similar to his conduct which gave rise to his offences for contravention of a domestic violence order, this would likely result in physical and psychological harm to victims and possibly severe harm.
Risk of possible future harm
There is no expert evidence before the Tribunal as to the risk that the Applicant will reoffend if he were allowed to remain in Australia.
The Applicant arrived in Australia in 2009 at the age of 18. He began offending in 2011 and has offended every year thereafter up until 2016. From that time he has been in prison or immigration detention. The Applicant has been dealt with by a court on 17 separate occasions for some 19 offences. It appears that he has been sent to prison on three occasions, the first being in February 2015. His numerous offences did not appear to deter him from continuing to offend. Nor did his first two periods of imprisonment. Indeed on the last occasion that the Applicant was imprisoned in April 2016, he committed disciplinary breaches involving assaults on a fellow prisoner in May and June 2016. Of particular concern was that after the Applicant was released on parole for being sentenced on 18 May 2015 for three counts of contravention of a domestic violence order and being sentenced to 8 months and three months imprisonment for those offences, the Applicant committed his most serious contravention of a domestic violence order within a year of his release from prison.
In addition, on 23 June 2016 the Applicant was convicted of his seventh drug-related offence. By this point in 2016 the Tribunal finds that it would have been abundantly clear to the Applicant that it was against the law to possess dangerous drugs and to continue to harm his former partner or otherwise contravene domestic violence orders.
As mentioned above, the Tribunal is not particularly concerned with the repetition of the Applicants drug-related crimes in and of themselves. However, the Tribunal is concerned that a return to drug consumption may affect the risk that the Applicant will continue to engage in violent behaviour. This is because the Applicant in part attributed his violent behaviour in the past to his consumption of marijuana.
Similarly, the Tribunal is not particularly concerned with the repetition of behaviour leading to the Applicant’s offences for committing public nuisance in and of themselves. However, the Tribunal is concerned that some of the behaviour engaged in those incidents has been aggressive including towards police, and repeat of that type of aggressive behaviour could escalate into serious physical violence.
The Tribunal has also placed some low weight on three risk of reoffending assessments made by Queensland corrective services. The first assessment which was made on 4 June 2013 indicated that the Applicant scored 8/20 with a score of 20 representing the highest risk of reoffending. The second assessments which was made on 31 December 2014 indicated that the Applicant scored 12/22 with a score of 22 representing the highest risk of reoffending. The third and final assessment was made on 16 August 2016 and indicated that the Applicant scored 17/22 with a score of 22 representing the highest risk of reoffending. There was no expert witness before the Tribunal to fully explain the scores and the Tribunal will therefore only place low weight on these assessments. However two things should be noted. First, a score of 17/20 would appear to represent a not insignificant risk of reoffending. Secondly, there has been a significant increase in the risk of reoffending number from 8/20 in 2013 to 17/22 in 2016. It is noted that there is no recent risk of reoffending assessment and it has now been some time since the Applicant offended and there are a number of matters discussed below which may indicate that the Applicant’s risk of reoffending has decreased.
The Tribunal has taken into account that the Applicant has offended while living with and being supported by his mother. He has offended while being an active member of his local church. He has offended on numerous occasions, including contravening a domestic violence order on four occasions, since the birth of his son.
All the above matters give weight to the proposition that there is a real, present and serious risk that the Applicant will continue to reoffend in a violent manner if he is allowed to remain in Australia.
However, there are a number of matters, including matters which the Applicant put forward, which if accepted, may decrease the Applicant’s risk of reoffending such that he is no longer a danger to the Australian community.
During the hearing before the Tribunal, the Applicant was asked directly by the Tribunal why it should find that the Applicant was not a danger to the Australian community. His first response was as follows:
“I’m remorseful for what I did. I was young and dumb, you know. Now I’ve changed. For years I have been inside, and then a lodge. I did a lot of courses. I learned something out of them. If I have another chance to (indistinct), I know what’s keeping me into trouble was going to make me not to be into trouble.”
When asked the same question later in proceedings the Applicant responded:
“As I say, I know myself. I’ve changed. It’s been four years since I’ve been there. I learned something out of it. I don’t want to be-I don’t want to come back again, be inside the jail or to come in detention centre. I want to live life with people outside, same within.”
The Tribunal has taken into account in the Applicant’s favour that he was relatively youthful when he began offending and for much of his offending. The Tribunal has taken into account the Applicant pleaded guilty to all of his offences. However, this is somewhat tempered by the fact that the Applicant continued to offend after previous pleas of guilty. The Tribunal has taken into account that many of the Applicant’s offences were relatively minor in terms of seriousness. This was reflected in the sentences for a number of the offences, including a number of offences when no conviction was recorded and fines were imposed. The Tribunal has taken into account that the Applicant has expressed some remorse for his offending and stated that he will not reoffend. While the Applicant’s solicitor has stated that he is not a habitual criminal, the fact of the matter is the Applicant has been convicted of many offences over a period of five years.
The Tribunal has taken into account that the Applicant has a six-year-old son with whom he has expressed a desire to re-establish a relationship. The Tribunal has also taken into account that the Applicant’s mother, an Australian citizen, resides in Australia. It appears that the Applicant was residing with his mother before his current period of imprisonment and detention. The Tribunal accepts that the Applicant has a close relationship with his mother. There was also some evidence in the material that the Applicant may have two uncles living in Australia and perhaps a cousin. The Tribunal has taken into account that the Applicant’s desire to re-establish a relationship with his son and his desire to continue his relationship with his other family members in Australia, especially his mother, give him a strong incentive to cease offending.
The Tribunal has also taken into account that the Applicant now fully realises that if he were to reoffend in Australia there would be a good chance that his future visa would be cancelled and he may be removed from Australia or subjected to prolonged immigration detention. The Tribunal considers that this would also give the Applicant a strong incentive not to reoffend if he were allowed to remain in Australia.
The Tribunal has taken into account that it has been found that the Applicant has a well-founded fear of persecution in Sudan. The Tribunal has also taken into account that the Applicant’s father and grandmother, who are living in Sudan have now passed away. The Tribunal has taken into account his mother’s claim that the Applicant has difficulties in his mother tongue which would make it difficult for him to reintegrate into the community in Sudan. The Tribunal has also taken into account the Applicant’s claims to fear harm and hardship if he returned to Sudan. The Tribunal has also considered the DFAT report which describes a country with low levels of economic opportunity, poverty, political unrest and poor health and educational resources and services. The Tribunal considers that these matters would also provide the Applicant with a strong incentive not to reoffend if he were allowed to remain in Australia.
The Tribunal has also considered that the Applicant has now spent a number of years in criminal detention and immigration detention. The Tribunal accepts that the Applicant does not wish to ever return to criminal or immigration detention. The Tribunal accepts that the hardship that has been caused to the Applicant by his long periods of imprisonment and especially immigration detention would act as a strong incentive not to reoffend if he were allowed to remain in Australia.
The Tribunal has taken into account the letter which the Applicant’s mother wrote to the Minister for Home Affairs in September 2016 in relation to the cancellation of the Applicant’s visa. In that letter, the Applicant’s mother relevantly stated:
“Due his time in prisons my son has admitted that he shouldn’t take any action towards his partner in any circumstances. Further, he has recognised his ignorance for the fact that the law should be respected. As result he confess that he will not fall in the same situation again in the future and he will not be troublemaker again either in African community or the mainstream community. However, he will be good behaviour and to start getting into workforce or educational pathway.”
The Tribunal has taken into account a letter from the senior pastor of the Australian Sudanese Church of Christ, Ashgrove, dated 1 May 2017. That letter indicated that the Applicant was a member of the church. The letter indicated that the pastor had seen improvement or progression in the Applicant in terms of self-control and “anger disciplinary”.
The letter indicated that the Applicant has completed certain rehabilitation courses in detention and expressed the belief that this was positive for the Applicant.
The Tribunal considers that the Applicant would receive support from the church and ongoing “spiritual encouragement like prayer” if he were allowed to remain in Australia. While the Tribunal considers that this would assist in preventing the Applicant from reoffending, this is tempered by the fact that the Applicant committed offences in the past while he was a member of the church.
The Tribunal has taken into account that the Applicant has completed a number of rehabilitative courses while in immigration detention. These include the “Understanding Anger” course completed on 21 December 2016, “Drugs And Alcohol”, completed on the same day, “Combat My Life Traps (Schema) Part 1” completed on 24 May 2017, “Breaking My Cycle of Addiction” completed on 30 May 2017, “Combat My Life Traps (Schema) Part 2” completed on 2 June 2017, “Combat My Life Traps (Schema) Part 3” completed on 7 June 2017, “Getting to Know You, Group Cognitive Therapy 1”, completed on 14 June 2017, “Getting to Know You, Group Cognitive Therapy 2”, completed on 21 June 2017; and “Getting to Know You, Group Cognitive Therapy 3” completed on 28 June 2017. The Applicant indicated that each of these courses involved three, 3 hour sessions conducted over a week for a total period of about nine hours for each course.
The Tribunal considers that the completion of these courses would assist the Applicant in not reoffending if the Applicant were to remain in Australia. The Tribunal also considers that the Applicant’s having undertaken these courses evidences that the Applicant has made efforts towards rehabilitation.
The Tribunal has taken into account that, for some of the Applicant’s time in Australia, he has been gainfully employed. The Assistant Minister’s reasons for decision refusing to revoke the cancellation of the Applicant’s visa, dated 18 October 2017, record that the Applicant was employed as a labourer and 2015, as a car cleaner in 2013 and as a food market pack in 2012. It was also recorded that the Applicant had completed an English-language certificate at TAFE. Given the Applicant’s previous employment history, the Tribunal considers that there are good prospects of the Applicant being able to find employment if he is allowed to remain in Australia. However, the Tribunal notes that in the past his employment did not prevent him from repeated criminal behaviour.
The Tribunal has considered the Applicants claim that his former partner is not at risk of violence from him because they have separated and he will have no further contact with her. As mentioned above, the Tribunal notes that the Applicant claimed that he separated from his partner in 2014 and then went on to commit multiple incidents of domestic violence against her after they had separated. In those circumstances, the Tribunal is not confident that the fact that the Applicant is separated from his former partner will mean that he will not reoffend against her in the future. The Applicant and his former partner share a child, which may mean that they may come into contact if the Applicant is granted a form of custody or visitation rights in the future.
After careful consideration of this issue, including consideration of all the matters mentioned above, the Tribunal has found that there is a real, significant and serious risk which is neither remote nor fanciful that the Applicant will cause harm to members of the Australian community if he remains in Australia.
The Tribunal considers that notwithstanding that the Applicant has not been found guilty of any offences for some time and the efforts that he has made to rehabilitate himself, and despite all of the strong incentives that exist for the Applicant not to reoffend, the Tribunal considers that the Applicant’s long and frequent history of offences, including his very serious violent offences committed against his former partner, on balance suggest that the Applicant will cause harm to members of the Australian community if he remains in Australia.
Conclusion: Does the Applicant meet the criterion in section 36(IC)(b) of the Act?
The Tribunal has found that the Applicant has been convicted by a final judgment of a particularly serious crime. The offence of contravention of a domestic violence order for which the Applicant was sentenced to 15 months imprisonment on 10 August 2016 was an offence against a law in force in Australia where the offence involved violence against a person. In addition, the offence was punishable by imprisonment for a maximum term of not less than three years.
The Tribunal has found that the Applicant’s violent offences are very serious and involved repeated and increasingly serious, abusive and violent conduct towards his former partner. The Tribunal has found that if the Applicant engages in conduct similar to the conduct which gave rise to his offences for contravention of a domestic violence order, this would likely result in physical and psychological harm to victims and possibly severe harm. The Tribunal has found that there is a real, significant and serious risk that the Applicant will reoffend if he remained in Australia.
The Tribunal finds that, at the time of this decision, there exists a present risk which is real, significant and serious, which is neither remote nor fanciful that the Applicant will cause physical harm and perhaps severe physical harm, or extreme emotional harm in the present or the future if he were allowed to remain in Australia. Therefore, the Tribunal finds that the Applicant is a danger to the Australian community
Consequently, the Tribunal is not satisfied that the Applicant meets the criterion for the grant of a Protection visa in section 36(1C)(b) of the Act.
The Tribunal finds that the Minister’s delegate’s decision, to refuse the Applicant a Protection visa on the basis that the Applicant does not meet the criterion for the grant of the visa in section 36(1C)(b) of the Act, is the correct decision.
DECISION
The decision under review is affirmed.
147. I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
....................[sgd]...................................................
Associate
Dated: 22 June 2020
Date of hearing:
19 June 2019
Solicitor for the Applicant:
Mr Anthony Stolar
Coongie Pty Ltd
Solicitor for the Respondent:
Ms Elle Tattersall
Sparke Helmore Lawyers
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