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

[2021] AATA 1576

JGCD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1576 (11 March 2021)

Division:GENERAL DIVISION

File Number(s):               2020/2987

Re:JGCD

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President P Britten-Jones

Date:11 March 2021

Date of written reasons:        3 June 2021

Place:Melbourne

The Tribunal remits the decision under review to the respondent with a direction that the applicant satisfies the criterion set out in section 36(1C)(b) of the Migration Act 1958 (Cth).

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Deputy President Britten-Jones

Catchwords

MIGRATION –– Protection (Class XA) (subclass 866) Visa refusal –– section 36(1C) of Migration Act 1958 (Cth) –– parties agree that the applicant is not a danger to the Australian community –– procedural question as to whether it is necessary for the Tribunal to determine whether the applicant had been convicted by a final judgment of a particularly serious crime –– decision under review set aside and remitted with a direction that the applicant satisfies the criterion set out in section 36(1C)(b) of Migration Act

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

JRJZ v Minister for Home Affairs [2018] AATA 3687

WKCG and Minister for Immigration and Citizenship[2009] AATA 512

REASONS FOR DECISION

Deputy President P Britten-Jones

3 June 2021

INTRODUCTION

1. This is an application for review of a decision of a delegate of the respondent to refuse the applicant a Class XA Subclass 866 Protection visa under s 36(1C)(b) of the Migration Act 1958 (Cth)[1] because he was considered to be a danger to the Australian community.

   [1] All references to legislation are to the Migration Act 1958 (Cth) unless stated otherwise.

2. Section 36(1C) 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.

3. At the hearing of this matter, upon the conclusion of the applicant’s oral evidence, the respondent conceded that the applicant is not a danger to the Australian community and that, accordingly, he satisfies the criterion in s 36(1C)(b). Following this concession, both parties agreed that it was open to the Tribunal to remit the decision under review with a direction that the applicant satisfies the criterion set out in s 36(1C)(b).

4. However, the respondent submitted that the Tribunal should still make a determination as to the first component of s 36(1C)(b) namely whether the applicant is a person who has been convicted by a final judgment of a particularly serious crime. In particular, the respondent did not want his concession with respect to s 36(1C)(b) construed as a concession with respect to this first component. This is because the respondent maintains, contrary to the applicant’s submission, that the applicant is a person who has been convicted by a final judgment of a particularly serious crime, or that the Tribunal should proceed on this assumption. This is a procedural issue which rests upon the construction of s 36(1C)(b).

5. It is my view that whether the applicant has been convicted of a particularly serious crime is merely of academic interest given the respondent’s concession that the applicant satisfies the criterion of s 36(1C)(b).

6. At the conclusion of the hearing I informed the parties that I was satisfied on the evidence that the applicant is not a danger to the Australian community. The parties agreed that a decision should be made under s 43(1)(c)(ii) setting aside the decision under review and remitting the matter for reconsideration with a direction that the applicant satisfies the criterion set out in s 36(1C)(b).

7. Pursuant to s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth), I now provide reasons for my decision in writing.

   ISSUES BEFORE THE TRIBUNAL

8. Both parties submitted that the Tribunal should find that the applicant is not a danger to the Australian community. I have accepted that joint submission and I will set out my reasons for so doing.

9. In addition, I will deal with the procedural issue referred to above.

   IS THE APPLICANT A ‘DANGER TO THE AUSTRALIAN COMMUNITY’?

10. The applicant committed several offences in late 2016 and early 2017, between the ages of 14 and 15 years old. On 14 August 2017, the Children’s Court of NSW dealt with all the offences.

11. Between 5 and 13 November 2016, the applicant entered the victim’s home, threw contents of a gift basket, smeared dip over the bathroom, threw wine glasses and opened a bottle. he applicant was found guilty of entering dwelling with intent to damage property and was sentenced to a good behaviour bond for 12 months.

12. On 25 November 2016, the applicant used a stolen car to make pay pass purchases and was later found by police driving the stolen vehicle. The applicant was found guilty of taking a conveyance and larceny. He was sentenced to a good behaviour bond for 24 months for each offence.

13. On 27 November 2016, the applicant stole a BMX bike from the veranda of a property and gave it to someone else. The bike was never returned. The applicant was found guilty of dispose stolen property and larceny. He was sentenced and released on probation for 12 months.

14. The next and most serious offence occurred on 24 January 2017 when the applicant committed the offence of robbery in company whilst on bail. According to the sentencing judge:[2]

    The victim was another young person and they were all attending an underage dance party. There was an incident following the party where a co-accused asked to use the victim’s phone which she gave him. The co-accused tried to reset it and told the victim to do so when he could not. The victim tried to take the phone back and the co-accused said “Touch your phone and I will bash you”. The victim said “Give me my phone back” then he punched in self-defence, the co-accused too fell. The young person then ran at the victim and began to punch and kick him. The victim fell to the ground and the young person kicked him twice. The co-accused then grabbed and pulled the victim’s satchel and the victim fearing assault would not stop let go of it. The young person and the co-accused ran off leaving the victim on the ground dazed. He received treatment from an ambulance for lacerations and swelling to his head.

    [2] Sentencing Remarks of 14 August 2017 at T14:199.

15. On 22 February 2017, the applicant committed another serious offence when he robbed a victim at a train station using violence. According to the sentencing judge:[3]

    The young person grabbed the victim applying pressure to his shoulder causing pain, telling the victim to give him everything or that he was going to hurt the victim. He also threatened to stab the victim saying he had a knife and there was no knife later found. The victim was significantly fearful by this threat and gave the young person a $50 note.

    [3] Sentencing Remarks of 14 August 2017 at T14: 199.

16. While in juvenile justice custody, the applicant committed the offence of common assault when he punched another young person in custody twice in the face.

17. For the robbery in company, the robbery and the assault, the applicant received an aggregate sentence of a 14-month control order with a 7-month non-parole period.

18. The applicant is now an adult and I was impressed by his oral evidence where he demonstrated maturity, genuine remorse and insight into his past behaviour.

19. My views were confirmed by a forensic psychiatrist, Dr Zimmerman, who prepared a comprehensive psychiatric report dated February 2021 and a supplementary report dated March 2021. She met with the applicant and was provided with a large volume of material relevant to the issues of his mental health and likelihood of recidivism.

20. Dr Zimmerman concluded in her original report that the applicant poses a low-moderate risk of future violent offending. She elaborated in her supplementary report that with relevant interventions and supports, the applicant would pose a low risk of future violent offending. She said that as the applicant moves away from adolescence, his brain will naturally mature to better manage impulses and his risk will continue to lower. The applicant has abstained from drugs and alcohol for four years and his continued abstinence would further minimise risk.

21. The applicant has a history of post-traumatic stress disorder (PTSD) and depression with his symptoms partially in remission. Dr Zimmerman identified risk management strategies to address these symptoms and reduce the likelihood of future violent offending. She said that the applicant would benefit from a youth targeted violence reduction program, stable accommodation, engagement with pro-social community supports, finding training/work and drug and alcohol counselling.

22. In his written statement, the applicant expressed his commitment to continued psychological treatment including trauma counselling if he were released. He told Dr Zimmerman that whilst he was confident that he would not relapse into substance misuse, he would engage with drug and alcohol counselling if recommended. I accept this evidence that the applicant is willing to engage with the necessary treatments and programs to reduce his risk of reoffending.

23. The applicant has several supports available to him if he were released. He has already engaged Jack Macraedie-Smith from Jesuit Social Services who provided two letters in support of the applicant in January 2021 and March 2021. In his March 2021 letter, Mr Macraedie-Smith confirmed that he has referred the applicant to a psychologist, trauma counselling and community support services which would be available upon release. Christine Nathan from Foundation House provided a letter in March 2021 where she wrote that the applicant confirmed to her his commitment to trauma counselling and would be prioritised to receive this treatment when he leaves detention.

24. The applicant has plans for the future including to move in with his stepsister and to study bricklaying. His stepsister provided two written statements where she indicated that she would provide the applicant with support including teaching him how to drive and assisting him to enrol in TAFE. I consider that the applicant has strong and realistic plans for the future and a robust support system to help him achieve these goals.

25. It is my view that the applicant has a low risk of reoffending and does not pose a danger to the Australian community.

    THE PROCEDURAL ISSUE

26. Prior to the hearing, both parties filed extensive statements of facts, issues and contentions dealing with the issue of whether the applicant is a person who has been convicted by a final judgment of a particularly serious crime. This involved complex questions of statutory construction. The parties disagreed as to the meaning of the expression ‘convicted by final judgment’ and the meaning of ‘a particularly serious crime’.

27. The parties maintained their dispute with respect to this issue at the hearing. The applicant submitted that at a minimum, it was necessary for me to decide the factual question as to whether the applicant was a risk to the Australian community. He also submitted that I should resolve the legal question as to whether the applicant was convicted by final judgement of a particularly serious crime if I found that the elements of s 36(1C)(b) should be read concurrently. The respondent submitted that s 36(1C)(b) has two components which must be read concurrently and that I could not deal with the second component without having first satisfied myself with respect to the first component. The respondent said I must make a finding as to whether the applicant is a person who has been convicted by a final judgment of a particularly serious crime or alternatively, proceed on the assumption that the first component is satisfied.

28. With respect to the construction of s 36(1C)(b), Deputy President Tamberlin QC said in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 at [29] that:

    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.

29. In JRJZ v Minister for Home Affairs [2018] AATA 3687 at [22], Deputy President Rayment agreed with this construction of s 36(1C)(b) and said:

    … that the requirement of having committed one or more particularly serious crimes is a gateway provision, rather than something with a causal relation to the question of whether he or she is a danger to the Australian community. 

30. It follows that the question whether a person constitutes a danger is a separate additional matter to be established independently from the question as to conviction. The two requirements in s 36(1C)(b) are not to be construed concurrently.

31. Further, I do not consider that WKCG or JRJZ provides a rule as to sequence. Section 36(1C)(b) does not require me to first consider whether the applicant is a person who has been convicted by a final judgment of a particularly serious crime before considering whether the applicant is a danger to the Australian community, although that approach would clearly not be erroneous. I am free to first consider as a separate question whether the applicant is a danger to the Australian community and if I am not so satisfied then there is no need to consider whether the applicant is a person who has been convicted by a final judgment of a particularly serious crime. Conversely, I would be free to consider first whether the applicant is a person who has been convicted by a final judgment of a particularly serious crime and if I were not so satisfied then there would be no need to consider whether the applicant is a danger to the Australian community.

32. If there was no agreement between the parties that the applicant is not a danger to the Australian community, I would of course need to consider whether the applicant had been convicted by a final judgment of a particularly serious crime because if the applicant had not been so convicted then the criterion for a protection visa in s 36(1C) would be satisfied. However, in this case there is agreement that the applicant is not a danger to the Australian community and therefore the issue as to the criterion for a protection visa under s 36(1C) is resolved without the need to consider whether the applicant has been convicted by a final judgement of a particularly serious crime.

33. There are occasions when it is appropriate to consider a secondary issue even though resolution of that issue is not necessary to determine the outcome of a matter. For example, it may be prudent for all issues to be considered and determined if on appeal the secondary issue becomes relevant. However, here the parties agree as to the outcome of the matter, so an appeal seems unlikely. Further, I must bear in mind the statutory objectives in s 2A of the Administrative Appeals Act 1975 (Cth) of being economical and proportionate to the complexity of the matter. For those reasons, I will not make a determination as to whether the applicant has been convicted by a final judgement of a particularly serious crime.

    CONCLUSION

34. The Tribunal finds that the applicant is not a danger to the Australian community. On that basis, the Tribunal remitted the decision under review to the respondent with a direction that the applicant satisfies the criterion set out in section 36(1C)(b) of the Migration Act 1958 (Cth). The Tribunal refrains from making a finding as to whether the applicant was convicted by final judgement of a particularly serious crime as this consideration is not necessary or required to reach the ultimate finding that the applicant satisfies the criterion in s 36(1C)(b).

I certify that the preceding 34 paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

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Associate

Dated: 3 June 2021

Date(s) of hearing:	11 and 12 March 2021
Counsel for the Applicant:	Mr Min Guo & Mr Julian Murphy
Solicitors for the Applicant:	Refugee Legal
Counsel for the Respondent:	Mr Christopher Tan
Solicitors for the Respondent:	Australian Government Solicitor