JMNR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 317
•27 February 2023
JMNR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 317 (27 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/3024
Re:JMNR
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Dr Linda Kirk
Date:27 February 2023
Place:Sydney
The Reviewable Decision of the delegate of the Respondent dated 30 March 2022 to refuse the Applicant a Protection (Class XA) (Subclass 866) visa under section 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.
.................................[SGD].......................................
Senior Member Dr Linda Kirk
Catchwords
MIGRATION – Protection (Class XA) (Subclass 866) visa – whether the Applicant has been convicted by a final judgment of a particularly serious crime – whether Applicant is a danger to the Australian community – Decision under review affirmed.
Legislation
Criminal Law Consolidation Act 1935 (SA)
Migration Act 1958 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)Cases
BHYK v Minister for Immigration and Citizenship [2010] AATA 662
DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636
FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1513
HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1967
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
KQBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2917
LKQD and Minister for Immigration and Border Protection [2018] AATA 2710
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
RVJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. (Migration) [2020] AATA 665
SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1515
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434
Secondary Materials
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth).
REASONS FOR DECISION
Senior Member Dr Linda Kirk
27 February 2023
BACKGROUND AND REVIEW APPLICATION
JMNR (‘the Applicant’) is a 40 year old citizen of South Sudan born in 1982. He arrived in Australia on 31 May 1999 as the holder of a Special Humanitarian (Class XB) (Subclass 202) visa (‘the Special Humanitarian visa’).0F[1]
[1] Exhibit R1, T3/14, 18-19.
On 10 May 2016, the Applicant was convicted and sentenced by the District Court of South Australia in relation to 21 separate offences.1F[2] For the offences of Aggravated assault without weapon against a police officer (two counts) and Commit theft using force (aggravated offence), the Applicant received a head sentence of three years and four months’ imprisonment, with a non-parole period of one year and 11 months.
[2] Exhibit R2, ST1, 3-6.
On 22 March 2018, the Applicant’s Special Humanitarian visa was mandatorily cancelled under section 501(3A) of the Act.2F[3] The Applicant sought revocation of that decision, and the matter remains before the Minister (‘the Respondent’).
[3] Exhibit R1, T3/14, 18-19.
On 1 April 2021, the Applicant lodged an application for a Protection (Class XA) (Subclass 866) visa (‘Protection visa’).3F[4]
[4] Ibid, T4, 66.
On 30 March 2022, a delegate of the Respondent was satisfied on reasonable grounds that the Applicant, having been convicted by final judgment of a particularly serious crime, was a danger to the Australian community. Accordingly, the delegate found that the Applicant did not satisfy the criterion in section 36(1C) of the Act and refused the grant of the Protection visa. The delegate was also satisfied that section 36(2C)(b)(ii) applied to the Applicant, such that he did not satisfy the criterion in section 36(2)(aa) of the Act (‘the Reviewable Decision’).4F[5]
[5] Ibid, T3, 13-65.
On 31 March 2022, the Applicant applied to the Tribunal pursuant to section 500(1)(c)(i) of the Act for review of the Reviewable Decision.5F[6]
[6] Ibid, T1, 1-5.
The application was heard by the Tribunal on 26 and 27 September 2022. The Applicant attended the hearing in person and was self-represented. He gave oral evidence and was cross-examined at the hearing.
The following documents were admitted into evidence at the hearing:
·T-documents, (T1 – T22, 1 – 256 pages) filed on 8 July 2022 – Exhibit R1
·Supplementary T-documents (ST1 – ST11, 1 – 223 pages) filed on 9 September 2022 – Exhibit R2
·Emails from Applicant to the Sydney Registry of the Tribunal dated 6 September 2022 – Exhibit A1
·Letter of support by F dated 6 September 2022 – Exhibit A2
·Letter of support by Ben Christenson filed on 19 July 2022 – Exhibit A3
·Letter of support by Kelly Pajira dated 26 August 2019 – Exhibit A4
·Letter of support by Applicant’s family dated 6 September 2022 – Exhibit A5
·Resume of Applicant dated 6 September 2022 – Exhibit A6
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
Refugee convention and legislative framework
Australia is a signatory to the 1951 Convention relating to the Status of Refugees (‘the Refugee Convention’), to which it acceded on 22 January 1954. Article 33 of the Refugee Convention provides:
Article 33 prohibition of expulsion or return (“refoulement”)
1No 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.
2The 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.
Section 36 of the Act relevantly provides:
Protection visas – criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a)Both of the criteria in subsections (1B) and (1C); and
(b)At least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a)is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b) see section 5M.
Under section 5M of the Act, a ‘particularly serious crime’, as that term is used in section 36(1C)(b), is defined as follows:
Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a)a serious Australian offence; or
(b)a serious foreign offence.
Section 5 of the Act relevantly provides a definition of ‘serious Australian offence’:
‘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.
Issues
The issues that require determination are whether the Tribunal considers, on reasonable grounds, that:
(a)the Applicant has been convicted by a ‘final judgment of a particularly serious crime’; and
(b)the Applicant is ‘a danger to the Australian community’.
Evidence before the Tribunal
Early years in Sudan
The Applicant was born in March 1982 in Kosti, near Rabak in Sudan. He is of Nuer ethnicity and the Christian religion.6F[7] He never met his father, who was a prominent politician and military commander in the Sudanese People’s Liberation Army (SPLA), and who was killed during the war.7F[8] The Applicant’s mother fled to Ethiopia when the Applicant was young, but he stayed in Sudan with his sister, grandmother and aunt, moving to Khartoum for a period, before returning to Renk.8F[9] Daily life in Renk was difficult for the Applicant and his family as there was a war at the time, and they had little money or food. The military was always present and there were curfews at night.9F[10]
[7] Ibid, T4, 104, [1].
[8] Ibid, [5].
[9] Ibid, [7].
[10] Ibid, [8].
After 10 years without contact with their mother, the Applicant and his sister went to Akobo Refugee Camp to try and find her, passing through areas where there was a lot of fighting.10F[11] Some of the people travelling with them did not survive the journey.11F[12] Life in Akobo was dangerous and difficult.12F[13] The Applicant’s mother was looking for her children, asking people to send messages to them, until she eventually found them.13F[14] The Applicant and his sister went on a military plane from Sudan to Kenya, and a civilian plane to Kakuma Refugee Camp, and later were reunited with their mother in Nairobi.
[11] Ibid, 105, [9].
[12] Ibid, [10].
[13] Ibid.
[14] Ibid, [11].
The Applicant and his family resided in Kenya for several years prior to being resettled in Australia. He attended school, even though he had no shoes or books.14F[15] He was granted the Special Humanitarian visa on 13 May 1999 and arrived in Australia on 31 May 1999, aged 17 years.15F[16]
[15] Exhibit R2, ST2, 12.
[16] Exhibit R1, T3, 14.
Life in Australia
The Applicant migrated to Australia with his mother, stepfather and seven siblings. They settled in Adelaide and the Applicant attended school.16F[17] In about 2005, the Applicant was ‘under a lot of stress’ and he moved out of the family home. In 2011, the Applicant relocated to Victoria with his mother.17F[18] He lived with his mother for a short period of time,18F[19] and then moved to a house which he shared with his stepbrothers. In September 2014, the Applicant moved back to Adelaide.19F[20]
[17] Transcript of proceedings, 27 September 2022, 8.
[18] Ibid, 8 and 17.
[19] Ibid, 18.
[20] Ibid, 33.
Education and other activities
The Applicant completed year 12 in 2003.20F[21] He subsequently completed a Certificate IV in Graphic design at TAFE and a one year integrating course into university at Flinders University. He completed voluntary service work at the Migrant Resource Centre where he helped new refugees settle in South Australia. He also played Australian rules football and really enjoyed it.21F[22]
[21] Exhibit R2, ST2, 12; Exhibit R1, T16, 200.
[22] Ibid, ST8, 117.
Employment history
In his Protection visa application, the Applicant provided information about his employment history. He worked in packaging and printing from 2002 until 2007, pizza-making from October 2007 until December 2007, as a printer from August 2007 until August 2009, as a tyre fitter from May 2009 until December 2009, in construction from approximately 2012 or 2013 to ‘unsure’, and in stone manufacturing from approximately 2014 or 2015 to 2015. He was unemployed during some of the years 2013 and 2014.22F[23]
[23] Exhibit R1, T4, 101.
Drug and alcohol use
The Applicant reported that he commenced drinking alcohol from the age of 20 years and was a daily user of marijuana from the age of 23. He acknowledged being a daily drinker, preferring wine, and typically drank at least a cask a day.23F[24]
[24] Exhibit R2, ST2, 12.
The Applicant told the Tribunal that he used alcohol ‘just to forget, just calm down.’ He denied that it made him aggressive.24F[25] He said that he has never had a problem with alcohol:
‘… I didn’t drink excessively, but I drank - I drank to forget. … I’m not addicted to it, but it didn’t drive me crazy. I haven’t had any issue with alcohol.25F[26]
… I was drinking because I was trying to - it was a culture thing, it was this way of, you know, meeting people and, you know, changing my circle of, you know, friends or people that I stay around with. I mean I never really find it - I never really, you know, find alcohol, you know, being a problem in my life’.26F[27]
[25] Transcript of proceedings, 29 September 2022, 90.
[26] Transcript of proceedings, 27 September 2022, 12.
[27] Ibid, 14.
The Applicant confirmed that he has not consumed alcohol since he went to gaol in December 2015.27F[28]
[28] Transcript of proceedings, 29 September 2022, 90.
Criminal offending
The Applicant’s first conviction in 2001 was for larceny followed by convictions in 2005 for driving-related offences. His first conviction for a violent offence was in 2009 for fighting. His subsequent offending escalated in frequency and seriousness until his incarceration in December 2015.
An Australian Criminal Intelligence Commission check, dated 7 February 2020, records the Applicant’s criminal history:28F[29]
[29] Exhibit R1, T16, 194-196.
Offence number Court Date Offence Court Result 1. Adelaide Magistrates Court 31/01/2001 Larceny Fined $75, without conviction 2. Adelaide Magistrates Court 21/06/2005 Drive unregistered motor vehicle on a road
Drive uninsured motor vehicle on road
Convicted, Fined
$100
Drivers licence disqualification 2 days
3. Adelaide Magistrates Court 01/03/2007 Drive with excess blood alcohol
Enter an intersection or marked foot crossing (red light)
Convicted, Fined
$500
Drivers licence disqualification 6 months
4. Adelaide Magistrates Court 08/09/2008 Duty to hold licence or learners permit (2 counts)
Drive uninsured motor vehicle on road (2 counts)
Drive unregistered motor vehicle on a road (2 counts)
Drive with excess blood alcohol
Convicted, Fined
$400
Drivers licence disqualification 3 months
5. Adelaide Magistrates Court 08/09/2008 Failure to answer question – identity of driver/owner of vehicle
Basic offence: dishonestly take property without consent
Convicted, Fined
$150
Compensation $100
6. Adelaide Magistrates Court 20/02/2009 Fighting Convicted. Discharged without penalty 7. Adelaide Magistrates Court 20/02/2009 Fail to comply with bail agreement Convicted. Fined $80 Disorderly behaviour 8. Adelaide Magistrates Court 16/08/2010 Fail to comply with bail agreement
Drive under disqualification or suspensionConvicted 9. Adelaide Magistrates Court 16/08/2010 Fail to comply with bail agreement
Hinder policeConvicted. Discharged without penalty 10. Holden Hill Magistrates Court 01/11/2010 Drive with excess blood alcohol
Fail to give particulars about crash to police
officerConvicted. Fined
$800
Drivers licence disqualification until further order11. Adelaide Magistrates Court 21/12/2010 Breach of community service order Found proved – 77 hours of community
service within 6 months12. Moorabbin Magistrates Court 14/08/2014 Drunk in a public place
Act in way that is prejudicial to, or that threatens, the security, good order or management of the police gaolWithout conviction, fined an aggregate of
$65013. Moorabbin Magistrates Court 14/08/2014 Criminal damage (intent damage/destroy Without conviction, fined an aggregate of
$650
Pay compensation
$20014. Holden Hill Magistrates Court 27/03/2015 Unlawful possession Unlawfully on premises Assault police Disorderly behaviour
Fail to comply with bail agreement (5 counts)
Resist police (3 counts)Convicted. Good Behaviour bond $100 18 months 15. Adelaide Magistrates Court 22/12/2015 Disorderly behaviour Convicted. Discharged without penalty 16. District Court of South Australia 10/05/2016 Breach of bond, re: 27/03/15 Found proved. No further penalty for
breach of order17. District Court of South Australia 10/05/2016 Commit theft using force (aggravated offence) Sentenced 2 years 9
months imprisonment18. District Court of South Australia 10/05/2016 Drive under the influence Sentenced. Fined
$1100
Drivers licence disqualified for 99 years19. District Court of South Australia 10/05/2016 Drive a motor vehicle on a road when not authorised Sentenced. Fined
$25020. District Court of South Australia 10/05/2016 Unlawfully on premises Hinder police
Fail to comply with bail agreementSentenced.1 month imprisonment 21. District Court of South Australia 10/05/2016 Aggravated assault without weapon against a police officer (2 counts) Sentenced. 9 months imprisonment Assault police
On 27 March 2015, the Applicant was convicted in the Magistrates Court of South Australia of the offence Assault police, which he committed on 11 December 2014.29F[30] The Applicant was found to be yelling loudly and spitting towards passers-by in a public place, being outside a shop. The police were called to the location. The Applicant was asked to stop, and he continued to act in a disorderly manner, and to wave his arms ‘in an aggressive windmill fashion.’ The police attempted to stand the Applicant up and place handcuffs on him. He suddenly and forcefully raised his right elbow and elbowed the police officer to his lip which caused a cut and bleeding.
[30] Exhibit R2, ST6, 52.
The Applicant pleaded guilty to these offences and was released upon entering a bond to be on good behaviour for 18 months. A condition of the bond was that the Applicant obey the directions of an officer of the Department of Correctional Services in respect to undertaking and completing counselling, courses or programs designed to assist him with his illicit drug problem and alcohol problem.30F[31]
[31] Exhibit R1, T16, 199.
During cross-examination, the Applicant denied this offending, including that he was intoxicated, acting in a disorderly manner and that he had elbowed the police officer. According to the Applicant, he saw a police officer at the shopping centre carpark who appeared to be looking for something with a torch. He thought the officer was looking for a needle or a coin, and he asked the police officer if he needed help.31F[32] The Applicant told the Tribunal that he had never had a problem with the police:32F[33]
‘The police - the police are not my enemy… I’ve never had any issue with police’.
[32] Transcript of proceedings, 27 September 2022, 36.
[33] Ibid, 38.
In his sentencing remarks, Magistrate Gurry noted that alcohol had been a factor in the Applicant’s significant record of past offences. He stated that ‘unless you do something about your drug and alcohol problems you will continue to offend and you will be in custody for longer and longer periods’.33F[34]
[34] Exhibit R1, T16, 199.
During cross-examination, the Applicant was asked by counsel for the Respondent why he pleaded guilty to the offence given his explanation of what occurred. He said it was because he ‘wanted to go home.’34F[35]
[35] Transcript of proceedings, 27 September 2022, 48.
Commit theft using force (aggravated offence)
On 10 May 2016, the Applicant was sentenced by the District Court of South Australia for Commit theft using force (aggravated offence). The sentencing remarks of Judge Brebner record that the Applicant’s offending occurred on 28 November 2015. The Applicant became ‘grossly intoxicated’ and dragged a 79-year-old man out of his vehicle while it was parked in a supermarket carpark, in order to steal it. Judge Brebner noted that the Applicant applied a ‘not insignificant degree of force’ on his victim, and that he drove away passing very close to where the victim laid on the car park surface. The victim received a wound to his back, lost a hearing aid worth $4,000, and experienced a reduced enjoyment of life and continued to suffer physically and psychologically.35F[36] Judge Brebner found that the Applicant committed robbery and that his crime was aggravated by his knowledge that the victim was over the age of 60.
[36] Exhibit R1, T16, 202.
The Applicant’s evidence is that at the time of this offending, he was homeless because his landlord broke his tenancy agreement. This was recognised by Judge Brebner in his sentencing remarks. His Honour stated:36F[37]
‘In November 2015 you were evicted from the premises where you were living. You were unemployed and you were facing homelessness. You became stressed. You turned to alcohol in order to cope and you relapsed into further offending.’
[37] Ibid, 201.
The Applicant provided the following explanation in relation to this offending:37F[38]
‘I took his car the old guy I did not think how old he was, I did not commit an aggravated Robborey (sic), but more like I defended myself in unthinkable reaction. I took a car by force from someone who was terrorising me and displaying unacceptable behaviour toword (sic) me. I had no right to do that I admitted Sorry, he is not hurt, but I was sick of it... those bad habits and anti- social behavior. He came across as sexually motivated they were home sexual (sic) toward me. I like women and I was homeless by the same acts and tactics he was displaying of anti-social behaviour corrupted in their minds, illusionist display of disturbern (sic). I was upset and feeling realy leftout (sic) by their humiliation tactics, I did not think how old he was, or what he look like. Dicrimination (sic) was a facter (sic) because I am not gay.’
‘Those are same bullying and tactics westerners used to devalue me as a black man and the roots of disagreement of being less derserving (sic) or being treated as less derserving (sic) of being normal permanent resident through Painting over the rust, He just wanted a reaction here I am. unless you don't understand poverty lack of opportunity in the black community in Australia bulling and harrestment is a big facter (sic). If there was anything legitimate and brain washing. we should've both be at court on the 30 may 2016 and him being charge with racial discrimenation, harresment, and bulling, (sic) I took all the blames and plead guilty so I can getout (sic) quickly.’
[38] Ibid, 200.
During cross-examination, the Applicant was asked why he committed this offence against the elderly gentleman. He stated:38F[39]
‘It wasn’t me, I was acting in a clear mind at the time. I was just - I was really - I was upset because, you know, he was not acting right toward myself.’
[39] Transcript of proceedings, 27 September 2022, 55.
The Applicant told the Tribunal that the victim had been following him in the supermarket, had stood behind him twice and was coughing and trying to attract his attention.39F[40]
[40] Transcript of proceedings, 29 September 2022, 73.
The Applicant agreed that he was attempting to steal the victim’s vehicle. He said that he was planning to use the victim’s car as shelter, as he was homeless at the time.40F[41] He told the Tribunal:41F[42]
‘When I took his car it’s just reacting - I was reacting out of the heat of the moment. I just had - I had a lot of issues that I was dealing with, you know, at the time, and I’m so sorry, you know, for what I’ve done to him. It would never - it would never occur again.’
[41] Transcript of proceedings, 27 September 2022, 56.
[42] Ibid, 57.
Aggravated assault without weapon against a police officer
On 10 May 2016, the Applicant was also sentenced in the District Court of South Australia for Aggravated assault without weapon against a police officer (two counts). The sentencing remarks of Judge Brebner record that the Applicant’s offending occurred on 28 November 2015 when he was stopped by police driving the victim’s vehicle that he had earlier stolen. He was found to be driving under the influence of alcohol and driving unauthorised. The Applicant resisted attempts by police to arrest him, committing an assault by punching one of the officers in the shoulder and neck. He was then taken to a police station and, while attempts were made to interview him, he committed a further assault when he spat in a police officer’s eye and on his face.
In his sentencing remarks, Judge Brebner noted that the assaults were aggravated by the fact that his victims were police officers acting in the execution of their duty.42F[43] In sentencing the Applicant, His Honour stated, ‘your actions in spitting on one of your victims are particularly repugnant’.43F[44]
[43] Exhibit R,1 T16, 202.
[44] Ibid, T16, 203.
During cross-examination, the Applicant denied that he punched the police officer and that he spat at another officer. He was asked why he pleaded guilty to the offence, to which he replied, ‘Because I wanted to go home. I wanted to go home to my family.’44F[45]
[45] Transcript of proceedings, 27 September 2022, 56.
Remorse and responsibility
In his sentencing remarks, Judge Brebner referred to the Applicant’s statements of remorse for his offending:45F[46]
‘You have been in custody since your arrest on 28 November 2015. You have dried out while you have been on remand and you have reflected on your circumstances. You accept responsibility for your actions. You are remorseful. You believe that you would not have behaved as you did but for your issues with alcohol. You never want to drink again and you are apologetic.’
[46] Exhibit R1, T16, 202.
During cross-examination, the Applicant expressed his remorse for his actions against his elderly victim:46F[47]
‘I’m sorry for what he went through, and I really deeply feel bad about it. I would call him, you know, and I would meet up with him, you know, and assure him that he’s fine, you know, that I’m deeply - that I wasn’t myself at the time. You know, such things, you know, don’t happen to people, and I’m so sorry that it happened to him.’
[47] Transcript of proceedings 27 September 2022, 57.
Psychiatric assessments
The Applicant was seen by psychiatrist Dr Craig Raeside on 27 February 2015 for the purpose of his sentencing in the Magistrates Court of South Australia on 27 March 2015.47F[48]
[48] Exhibit R2, ST2, 9-16.
In his report dated 4 March 2015, Dr Raeside stated that the Applicant reported abusing alcohol heavily since the age of 20, especially when he was ‘stressed out’, and using marijuana on a daily basis from the age of 23.48F[49] He noted that the Applicant’s history suggested ‘longstanding alcohol dependence and abuse’ which appeared to have been a problem for at least the previous four or five years.49F[50] Dr Raeside considered that addressing the Applicant’s alcohol abuse and dependence should be a high priority as he remained at ‘significant risk of further alcohol abuse and disturbed behaviour in the community until his alcohol issues are addressed.’50F[51]
[49] Ibid, 11 and 14.
[50] Ibid, 15.
[51] Ibid, 16.
Dr Raeside found no clear evidence the Applicant was suffering from a psychiatric illness,51F[52] which would affect his capacity to commit the offences, or to form the necessary intention so to do, or to his fitness to plead. However, he noted that the Applicant’s presentation at interview was ‘concerning’ and ‘appeared to be consistent with underlying cognitive impairment, most likely the result of longstanding alcohol abuse.’ He recommended a neuropsychological assessment to allow this to be more carefully evaluated.52F[53]
[52] Ibid, 15.
[53] Ibid.
Concerns about the Applicant’s mental health have been expressed by International Health and Medical Services (IHMS) psychiatrists during his time in immigration detention. On 4 December 2019, a psychiatrist was of the impression that the Applicant had experienced a ‘hypomanic episode’ after claiming detention officers were ‘programming’ him and using reverse psychology.53F[54]
[54] Ibid, ST11, 221.
On 5 March 2020, the Applicant was seen by the same IHMS psychiatrist who diagnosed Bipolar II disorder most recent episode hypomanic (disorder).54F[55]
[55] Ibid, 218.
On 3 February 2021, another psychiatrist saw the Applicant and diagnosed Psychotic disorder (disorder).55F[56] He reported:
‘Current symptoms of thought disorder, labile affect and paranoia suggest a current psychotic episode; Given past diagnosis of bipolar disorder, differentials include schizoaffective disorder and bipolar disorder with psychotic features; Cannot exclude the possibility of a drug-induced episode, although patient denies use.’
[56] Ibid, 212.
The psychiatrist concluded that the Applicant was ‘on the cusp of meeting the criteria for involuntary detention under the mental health act.’56F[57]
[57] Ibid.
On 19 February 2021, following his transfer from Christmas Island Immigration Detention Centre to the mainland, the Applicant was assessed by an IHMS psychiatrist and deemed to not meet the criteria for involuntary mental health treatment. He declined going to hospital for treatment and refused medication and counselling.57F[58] The psychiatrist recorded the Applicant as presenting with ‘formal thought disorder with frequent derailments.’58F[59]
[58] Ibid, 181.
[59] Ibid, 209.
A IHMS record reported that since 19 February 2021, the Applicant had declined to attend two psychiatrist appointments and declined to engage with a IHMS GP. He also repeatedly declined to engage with mental health nurses and said repeatedly that he does not wish to engage with the IHMS mental health team.59F[60]
[60] Ibid, 181.
In a report dated 31 January 2022, it was stated that on 30 August 2021, the Applicant advised an IHMS GP that he felt low in mood and preferred to stay in his room as he felt he was surrounded by a lot of people with mental health issues. He requested to be seen by the IHMS mental health team and had an appointment scheduled for 7, 10, 16 and 21 September 2021, but failed to attend all these appointments. The same was recorded on 11 and 26 October 2021, 15 November 2021 and 31 December 2021. At the date of the report, the Applicant had not presented with any major or acute mental health concerns.60F[61]
[61] Ibid, 184.
On 5 May 2022, the Applicant was seen by a psychiatrist who reported that he displayed ‘[n]o evidence of mental illness’ and ‘no current signs of psychosis or mania / hypomania.’ The psychiatrist noted that the Applicant had been unmedicated at Villawood Immigration Detention Centre for approximately one year without any concerns about his behaviour in this setting.61F[62]
[62] Exhibit R2, ST11, 186.
At the hearing, the Applicant told the Tribunal that he is ‘not suffering from mental health’ and he feels ‘good’. He confirmed that he had been asked if he wanted to be on medication, but he said that he did not need it.62F[63]
[63] Transcript of proceedings, 29 September 2022, 99.
Rehabilitation programs
SA Corrective services records indicate that the Applicant was assessed on 2 June 2015 at Adelaide Community Correctional Centre and found to be suitable to undertake the Making Changes Program, which is a program designed specifically for offenders with a moderate to high risk of general reoffending and whose offending is linked with substance use issues. The Applicant commenced Phase 1 and successfully completed it on 14 July 2015. He had 100% attendance and participated and engaged to a satisfactory level. He commenced Phase 2 at Adelaide Community Correctional Centre on 6 October 2015 but was withdrawn from the program due to his imprisonment.63F[64] On 2 February 2018, the Applicant was reassessed in Yatala Labour Prison and found to be suitable to undertake Phases 2 and 3 of the Making Changes Program. He was reported to have been unmotivated to engage in the Program, as he believed he had completed the program prior to his arrest.64F[65]
[64] Exhibit R2, ST8, 117.
[65] Ibid, 118.
Risk of re-offending
A Department of Correctional Services Report dated 20 February 2018 assessed the Applicant to be a ‘moderate to high’ risk of reoffending.65F[66]
[66] Ibid, 119.
In his statement dated 2 August 2021, the Applicant addressed the subject of the risk of him re-offending and his rehabilitation prospects:
‘I am postive (sic) I should be working and staying active and have a good social influence, I am stuying (sic) away from drugs and alcohol (sic). I got family that wants me. Healthy economic is the only contribution I am going to make, I am going to be fun a good leader whenever I go, it's a must that my permanent residency is a priority.’
Incidents in gaol and immigration detention
During his time in gaol, the Applicant was alleged to have been involved in nine incidents involving assaults on other prisoners, and five incidents involving abusive/threatening behaviour towards staff.
On 7 January 2016, the Applicant was accused of attacking another prisoner with a toilet brush, punching him about six times to the nose and face, and striking him over the head twice with a full water bottle.66F[67] The Applicant told the Tribunal that the prisoner attacked him with the toilet brush, and he was defending himself with the water bottle.67F[68]
[67] Ibid, 114.
[68] Transcript of proceedings, 29 September 2022, 61.
On 5 June 2017, the Applicant was observed assaulting another prisoner, and kicking him in the head when he slipped.68F[69] The Applicant told the Tribunal that this did not occur and the officer who made the report was ‘making it up’.69F[70]
[69] Exhibit R2, ST8, 115.
[70] Transcript of proceedings, 29 September, 61.
The Applicant agreed ‘absolutely’ with the statements put to him in cross-examination that ‘everyone is out to get you’ and ‘you’re the victim in all this’.70F[71]
[71] ibid, 62.
Since he was transferred to immigration detention on 27 March 2019, the Applicant is alleged to have been involved in 38 incidents, including multiple incidents in which he displayed abusive and aggressive behaviour towards detention centre staff and threatened to assault and kill detention centre staff.
The following lists the Applicant’s recorded incidents in detention during the period 3 May 2019 to 8 July 2021:
Date Category of incident Detail of alleged incidents 8 July 2021 Abusive/Aggressive
Behaviour
Displayed abusive and aggressive behaviour
towards Serco staff
22 June 2021 Abusive/Aggressive
Behaviour
Displayed aggressive and abusive behaviour
towards Serco staff members
20 April 2021 Abusive/Aggressive
Behaviour
Was abusive and aggressive towards staff 5 April 2021 Abusive/Aggressive
Behaviour
Behaved in an abusive and aggressive manner
towards Emergency Response Team (ERT) officer
12 February 2021 Abusive/Aggressive Behaviour Displayed abusive and aggressive behaviour by raising your voice and swearing at Serco staff
members
6 February 2021 Abusive/Aggressive Behaviour Displayed abusive and aggressive behaviour towards IHMS nurses in the IHMS clinic 3 February 2021 Abusive/Aggressive
Behaviour
Displayed abusive and aggressive behaviour
towards Serco staff members
31 January 2021 Abusive/Aggressive
Behaviour
Was abusive towards a Serco staff member 21 January 2021 Assault – Minor Made a verbal threat of violence towards a Serco
staff member
9 January 2021 Abusive/Aggressive
Behaviour Damage-Minor
Verbally abusive to IHMS staff during morning
medication round. Also damaged a bin and buried a piece of metal
28 November
2020
Abusive/Aggressive
Behaviour
Was abusive and aggressive towards detainee
services officer (DSO).
8 September
2020
Abusive/Aggressive Behaviour Displayed aggressive behaviour towards a Serco staff member 7 September
2020
Abusive/Aggressive
Behaviour
Abusive and aggressive to Serco officer 19 August 2020 Abusive/Aggressive
Behaviour
Abusive and aggressive to Serco officer 3 August 2020 Assault – Minor
Abusive/Aggressive Behaviour
Involved in a physical altercation/fighting with a
detainee
2 July 2020 Abusive/Aggressive
Behaviour, and Major use of force
Abusive and aggressive with ERT officer,
mechanical restraints applied
11 June 2020 Abusive/Aggressive
Behaviour
Verbally abusive/aggressive towards Serco staff 2 May 2020 Abusive/Aggressive
Behaviour
Became abusive towards officer 10 March 2020 Assault – Minor Involved in altercation with another detainee 11 February 2020 Assault – Minor Abusive/Aggressive
Behaviour
Used abusive language to Serco officers, including threats to kill. Spat in the direction of the officers. 10 February 2020 Abusive/Aggressive Behaviour Threw a chair at the wall and used abusive language towards a DSO. 2 January 2020 Assault – Minor Damage – Minor Observed assaulting another detainee by pushing
him in the face and slapping his head, and also made verbal threats. Spat on a staff member and
made verbal threats to assault multiple staff
members. Repeatedly kicked the wall of the room you were in, resulting in cracks in the plaster27 December
2019Disturbance - Minor You were involved in a verbal altercation with
another detainee2 December 2019 Weapon in possession – Minor Category 2 – Major Use of Force Abusive/Aggressive Behaviour Accident/Injury – Minor
Assault – MinorObserved being aggressive towards other detainees. Observed picking up a pool cue and continuing with the aggressive behaviour. When you were taken out of the common room you continued to be aggressive towards officers. You were escorted to Northern Hospital for a medical assessment. You were escorted there while in restraints; these were loosened to allow you to eat and you objected to them being re-tightened. You then became abusive and started kicking and spitting at staff. Hospital security were called and you were restrained on a hospital bed. A spit hood was placed on you. The spit hood was later removed by nursing staff. 15 November
2019Abusive/Aggressive
BehaviourYou were abusive and aggressive towards property
staff member.11 November
2019Disturbance - Minor You and another detainee were kicking and
banging the compound fence and shouting abusive
language at staff24 October 2019 Abusive/Aggressive
BehaviourObserved being aggressive towards another
detainee; when approached by staff you then became aggressive towards them.10 October 2019 Assault – Minor
Abusive/Aggressive BehaviourDisplayed abusive and aggressive behaviour
towards staff. Assaulted another detainee,
approached another detainee in an aggressive manner9 September
2019Assault – Minor
Abusive/Aggressive
BehaviourYou were abusive and aggressive to Serco officers
during room search, threatened to kill staff
members and verbally abused them29 July 2019 Abusive/Aggressive
BehaviourDisplayed abusive and aggressive behaviour
towards an IHMS nurse.19 July 2019 Abusive/Aggressive
Behaviour Category 2 – Major Use of Force
Disturbance – Minor
Assault – MinorYou were involved in an argument with detainees,
you hit another detainee, and you were verbally abusive and aggressive towards staff13 June 2019 Abusive/Aggressive Behaviour You were verbally abusive and aggressive towards staff. 12 June 2019 Assault – Serious Category 2 – Major Use of Force Abusive/Aggressive
BehaviourYou were verbally abusive and aggressive towards staff and officers attempted to restrain you. During this attempt at restraint you bit an officer causing injury. 11 June 2019 Abusive/Aggressive
BehaviourDisplayed abusive and aggressive behaviour
towards staff.26 May 2019 Assault – Minor
Abusive/Aggressive BehaviourDisplayed abusive and aggressive behaviour to SIS
officer, behaving in a threatening manner and making verbal comments20 May 2019 Abusive/Aggressive
Behaviour
Damage – MinorObserved damaging a rubbish bin and then used
abusive and aggressive behaviour to staff.7 May 2019 Abusive/Aggressive
BehaviourWas abusive and aggressive towards ERT officer 3 May 2019 Abusive/Aggressive Behaviour
Assault – MinorDisplayed abusive and aggressive behaviour towards staff and used verbal threats.
During cross-examination, the Applicant disagreed that he had been violent, abusive or aggressive in immigration detention.71F[72]
[72] Ibid, 63.
On 12 June 2019, the Applicant departed the mess area in an aggressive manner and swearing at staff. He entered the personal space of one of the officers and force was used against the Applicant who threatened to fight the officer. He was taken to the ground in order to have restraints placed on him. The Applicant bit the officer on the right thigh above the knee, causing a laceration approximately two inches in diameter and which bled.72F[73]
[73] Exhibit R2, ST10, 161.
During cross-examination, the Applicant agreed that he bit the officer because he held his head down until his nose was bleeding. He told the Tribunal that the officers had choked him until he blacked out and almost killed him.73F[74] He claimed they also sexually assaulted him when he was returned to his cell.74F[75] He told the Tribunal that he wrote a letter of complaint to his case manager in relation to this treatment.75F[76] The Applicant agreed with the statements put to him in cross-examination that the officer ‘was out to get you and was targeting only you’ and ‘he made it his mission to go out of his way to target you’.76F[77] He said there were other occasions when he was targeted by this officer.77F[78]
[74] Transcript of proceedings, 29 September 2022, 74.
[75] Ibid, 74-75.
[76] Ibid, 75.
[77] Ibid.
[78] Ibid.
On the morning of 2 December 2019, the Applicant and other detainees were present for activities.78F[79] Due to the cold weather, it was decided that the activities would be held indoors. The Applicant became upset and called another detainee a ‘dog’ and then picked up a pool cue and started verbally abusing the detainee and one of the detention centre officers stating, ‘I will fucking smash this over your skull right now.’79F[80]The Applicant continued calling the officer a ‘scum bag’ and ‘mother-fucking dog’ and threatened to knock him out, while displaying aggressive body language with clenched fists.
[79] Exhibit R2, ST10, 157.
[80] Ibid.
Later on 2 December 2019, the Applicant was placed in a body belt while he was taken to the hospital for an assessment. He was provided with a meal by hospital staff and the tethers of his body belt were loosened to allow him to eat. When he finished his meal, the staff advised him that they had to re-tie the tethers back to their original position. The Applicant is reported to have become abusive and aggressive and started swearing. He threatened to kill them and spat at the direction of the detention officer. When questioned about this incident during cross-examination, the Applicant denied that he threatened to kill the staff. He explained what occurred as follows:
‘They put the body belt on me. They almost, yes, they almost killed me in hospital. You know, they injected me with, you know, things that I don’t even know, you know. You know, it made my muscle, you know, swell, you know, my throat swell, you know, my airpipe, you know, swell and I couldn’t breathe and I was sure that I was going to die …’
After the Applicant reportedly threatened to kill the officer, force was applied by two officers to take control of him. During the scuffle that occurred when the Applicant resisted this force, one of the officers was kicked in the jaw and the other was hit in the side of the head. When questioned about this incident during cross-examination, the Applicant denied that he physically assaulted officers and said they had physically assaulted him.80F[81]
[81] Transcript of proceedings 29 September 2022, 78.
On 31 July 2022, a detainee informed detention centre staff that he was sitting in the common area watching TV when the Applicant walked up to him and asked him for the Applicant’s mobile phone. When the detainee said that he did not have the Applicant’s phone, the Applicant started punching and kicking the detainee in the face causing his mouth and nose to bleed and he was taken to Bankstown Hospital.81F[82] During cross-examination, the Applicant agreed that this ‘definitely’ happened. He told the Tribunal that the detainee had his phone, and when he refused to return it, he punched him once and when he went to the ground, he kicked him in the ribs.82F[83]
[82] Exhibit R2, ST10, 168.
[83] Transcript of proceedings, 29 September 2022, 83.
On 2 August 2022, a detention centre officer went to check on the Applicant who was in enhanced monitoring.83F[84] As the officer left the room, the Applicant attacked him from behind, attempting to choke him. The detention centre officer reported that he blacked out and he was only made aware of what was going on when another detainee who came to his aid helped him to his feet. During cross-examination, the Applicant agreed that he did attack the officer. He explained what had occurred:84F[85]
‘You know, he came check on my room, like, he came check on my room twice, you know, like, he came and gave me a piece of paper but he didn’t tell me – give me a piece of paper, you know, put it on the floor or put it at the door, put it under the door, you know, just like a normal person. He came and opened my door and walked all the way to my bed, you know, I was trying to type – I was typing the letter, you know, and I knew that he wasn’t – he was under the – he was on the radio with his – he was on the telephone with his staff member and, you know, they would, like, you know, make another excuse that it’s not accurate about me, you know, and I’m, like, I’m not scared of that, you know, you know, but I just felt like, you know, he just doesn’t – he doesn’t have the room, you know, on my – like, I’ve been abused for so long, you know, and I took, you know, I took so many, you know, so many punches, you know, from, you know, from this particular, you know, Serco staff.’
[84] Exhibit R2, ST10, 174.
[85] Transcript of proceedings, 29 September 2022, 86.
The Applicant told the Tribunal that he asked the officer why he was in his room, and he did not tell him the reason. He said that he could not have been under observation because he had not done anything wrong.85F[86] He thinks he punched the officer with his left arm, and the officer then passed out and was snoring on the ground.86F[87] He did not mean to do what he did, and he ‘really feel(s) bad for it.’ He explained:87F[88]
‘[The officer] approached me like me being, you know, me being the predator ... You know, and it is so upsetting. I mean, I could have just left it, you know, just like I left it so many times. He was talking – he was doing that a few times, you know, and I warn him before that, I told him, “Mate,” I’m like, “You don’t know me that way,” because what he’s actually doing is, you know, he’s hacking into other – he’s telepathic and then he would say things that are not true, then he – and then he would agree to his own lies, you know, and I get really upset, you know.’
[86] Ibid, 87.
[87] Ibid, 86.
[88] Ibid, 87.
The Applicant alleges that he has been discriminated against, intimidated, assaulted, and victimised by staff, and has faced false accusations by detention centre staff. He provided examples of this treatment, including the following: 88F[89]
·‘I had one serco staff bring me bread on my table without not asking for the bread in the first place, his action was to crimnlize (sic) me, using me as a target and a subjut (sic) for others detenee (sic) to laugh at and pick on.
·serco staff steeling (sic) from my canteen buys. They stool (sic) coke, canteen buys and phone cards and even my canteen money which is so call points, numbers of complaints has been forwarded to the manger by myself both verbal and writern (sic). Staff action is to bring you down and make you feel stuiped, terrising (sic) you and cover it up.
·serco staff alway (sic) check on me when I am using toilet or cleaning myself in the shower, when I ask, their reasons are weak. I beleive (sic) is sexually motivated and making crimnal (sic) accusation supporting their wrong mental activites (sic) normally they would leave sexual harresment (sic) points by verbally assulting (sic) you, and they will cover it up.
·one day doring (sic) meals hours at dinner, I was victimaze (sic), and targeted and mainplated (sic) against. I ask the staff member who was doing that to stop, in the meal area, because, he was bulling me in which he refere (sic) to as the program, all that happen during dinner time, as a result of occurent (sic) from him. I receive needles beating, my face held down until bleeding in some area of my body, chocking until I stop breathing, twisting my arms result in injuries, handcaft (sic) until hands are bleeding, I had internal injuries, spinal injuries, leg injures, sexual assultin phiscal (sic) and verbale assault (sic). Permanent spinal injury as a results of that.’
[89] Exhibit R1, T17, 210-211.
Family support
The Applicant told the Tribunal that his mother lives in Melbourne, and he thinks she currently works in Alice Springs. He is regularly in contact with his mother. Three of his sisters, one brother and two aunts live in Melbourne. He has one friend in Melbourne and two friends in South Australia.89F[90]
[90] Ibid, 100.
In a letter dated 26 July 2021 from the Applicant’s family, they outlined the changes the Applicant has made to his life and the support they are willing to provide to him to assist him to return to the community:
‘[JMNR] has made a tremendous amount of change in the past year, not only in his personal life but also regarding his understanding of the dynamics and importance of a functioning family and community. [JMNR] has had lengthy conversations with us regarding his current circumstances and feels the outmost remorse, shame and absolute regret of his actions that have led to his downfall currently and has taken the necessary steps to change his life around. He is willing and has a rally of family members to support him as he transitions back into society and eager to undergo any other activities to give him another chance of rebuilding his future for the better. We have great faith in him, and we hope for a positive result with the finalization of his outcome, in hopes that nothing is going to further delay or jeopardies his opportunity to create and maintain a better life. [JMNR] has over fifteen nephews and niece’s awaiting his return and another to be born late 2021. He continues to maintain contact with them via social media video calls and phone calls, but even that feels inadequate. He continues to express to all of us the despair he feels as he is “in there” while missing out on not only his freedom, but the kids growing up so much and he is missing out of those experience with them all. As a family we will ensure that if approved, that [JMNR] will receive every bit of support from us to rehabilitate back into society, to continue to make the necessary and positive changes he has been making to rebuild his future and reconnect with family members.’
Future plans
The Applicant told the Tribunal that if his visa is reinstated, he will go to Victoria. He wants to live with his mother, and she is happy for him to do so.90F[91] He has a girlfriend who is ‘waiting’ for him, even though she is not answering his calls and he has not been in contact with her since July 2022.91F[92]
[91] Ibid, 102.
[92] Ibid.
The Applicant plans to go back to graphic art school or work in printing or manufacturing. He is confident that if he asked his previous employers for a reference or direction, they would be happy to assist him.92F[93] He has been in contact with his former supervisor at the printer where he worked in South Australia, and he has told the Applicant that he can come back there to work.93F[94]
[93] Ibid, 101.
[94] Ibid, 103.
The Tribunal asked the Applicant how he will be able to work in South Australia and live in Victoria. He said that he would travel back to Melbourne every weekend, and would live with a friend in South Australia during the week.94F[95] He has sent a text to this friend and asked him to call him, but he has not done so. However, he is confident that if he tells his friend that he wants to live with him, he would ‘definitely’ let him stay with him.95F[96]
[95] Ibid.
[96] Ibid, 104.
The Applicant told the Tribunal that he will never again drink the way he did in the past, and he would only drink if he is allowed to. He is a lot older now and can control himself better.96F[97] If he finds himself in a difficult situation again, he will ‘ask for a lot of help’. He would reach out to a community leader or to people in his church community.97F[98]
[97] Ibid.
[98] Ibid, 104-105.
Consideration and Reasons
In NBMZ v Minister for Immigration and Border Protection,98F[99] Allsop CJ and Katzmann J recognised that Article 33(1) of the Refugee Convention ‘is central to the protection to be afforded to a refugee” and “is the cornerstone of the protection of refugees and those seeking asylum.’ Their Honours further identified the function and purpose of Article 33(2):99F[100]
‘It is important to recognise not only the place of Art 33(1), but also of Art 33(2) in the contextual fabric for decision-making about those who have been recognised as refugees. It describes the serious conditions that justify the return of a refugee to a place where he or she may face persecution. Article 33(2) and the circumstances within it reflect the balance contained within the Refugees Convention between protection of those who need it, and the legitimate entitlement of Contracting States not to be required to give protection to those who pose a danger to the host State and its people.’
[99] [2014] FCAFC 38; (2014) 220 FCR 1, at [12],
[100] Ibid, [21].
Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The outline to the Explanatory Memorandum to the Bill stated:100F[101]
‘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.’
[101]Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, Explanatory Memorandum, 12.
Paragraph 1236 of the Explanatory Memorandum further stated:
‘New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention. As such, a person who is captured by new subsection 36(1C) will not engage Australia’s non-refoulement obligations under the Refugees Convention or for the purposes of the new statutory framework relating to refugees.’
It is against this background that the Tribunal now considers whether the Applicant’s offending is such that the requirements of section 36(1C) are satisfied thereby disentitling him to the grant of a protection visa.
1) Has the Applicant been ‘convicted by a final judgment of a particularly serious crime’?
The Applicant has been convicted of offences which meet the threshold of being a ‘serious Australian offence’ in section 5M(a) of the Act. A ‘serious Australian offence’ is defined in section 5(1)(a)(i) of the Act to include an offence ‘that involves violence against a person’ which is punishable by ‘imprisonment for maximum term of not less than three years’: section 5(1)(b)(iii) of the Act.
At least three of the offences for which the Applicant has been convicted were punishable by a maximum term of imprisonment of not less than three years. These include:
·Commit theft using force (aggravated offence) - under section 137(1)-(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) as at the time of sentence, the maximum penalty for this aggravated offence was life imprisonment.
·Aggravated assault without weapon against a police officer (two counts) - under section 20(3)(b) of the CLCA as at the time of sentence, this offence was punishable by a maximum term of three years’ imprisonment.
·Assault police - this was an aggravated offence and one that caused harm, thus under section 20(4) of the CLCA (read with section 5AA(1)(c)) as at the time of sentence, the offence was punishable by a maximum penalty of four years’ imprisonment.
The Tribunal is satisfied that the offences for which the Applicant was convicted also ‘involve violence against a person’. The Commit theft using force (aggravated offence) the Applicant committed against the elderly gentleman in November 2015 was an act of violence involving ‘not insignificant degree of force’.
Based on this evidence, the Tribunal is satisfied that the Applicant has been ‘convicted by a final judgment of particularly serious crimes’, for the purposes of section 36(1C)(b), which are ‘serious Australian offence[s]’ under section 5M(a) and section 5(1) of the Act, as they involved violence against a person, punishable by a term of at least three years’ imprisonment.
2) Is the Applicant ‘a danger to the Australian community’?
The determination of whether the Applicant poses a ‘danger to the Australian community’ does not involve the exercise of a discretionary power. If the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision: section 65 of the Act and MVLW and Minister for Immigration and Border Protection (‘MVLW’).101F[102] It cannot balance the danger the Applicant poses to the community against the possible harm they may face if returned to their home country: SZOQQ v Minister for Immigration and Citizenship.102F[103]
[102] [2017] AATA 1557 at [29]-[32].
[103] [2012] FCAFC 40 at [27].
In its submissions, the Respondent referred to the differing interpretations of ‘danger to the Australian community’ under section 36(1C)(b) of the Act by Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship (‘WKCG’)103F[104] and by Logan J in DOB18 v Minister for Home Affairs (‘DOB18’).104F[105]
[104] (2009) 110 ALD 434.
[105] (2019) 269 FCR 636; Respondent’s SFIC (‘RSFIC’), 4.
In WKCG, Deputy President Tamberlin articulated the following meaning of ‘danger’ in the context of section 36(1C)(b) of the Act:105F[106]
‘The language of the Article directs attention to the expression ‘danger’. This expression indicates that regard must be had to the future as well as the present and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at ALR 38; ALD 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression ‘danger’ involves a lesser degree of satisfaction than that required by the expression ‘probable’.’
(Emphasis added).
[106] Ibid, [31].
Deputy President Tamberlin explained that whether a person is a danger to the Australian community is a question of fact and degree, and that regard must be had to all the circumstances of each individual case.106F[107] The Deputy President’s interpretation of ‘danger’ in section 36(1C) of the Act has been applied in subsequent Tribunal decisions including BHYK and Minister for Immigration and Citizenship;107F[108] MVLW and Minister for Immigration and Border Protection ;108F[109] LKQD and Minister for Immigration and Border Protection ;109F[110] and RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.110F[111]
[107] Ibid, 25.
[108] [2010] AATA 662.
[109] [2017] AATA 1557.
[110] [2018] AATA 2710.
[111] [2020] AATA 665.
In DOB18 Logan J, by way of obiter, articulated his interpretation of ‘danger’ in the context of section 36(1C) of the Act.111F[112] His Honour observed that ‘danger’ and ‘risk’ are qualitatively different concepts:112F[113]
‘The meaning to afford “danger” in s 36(1C)(b) of the Act must commence with the text itself, with context and general purpose and policy being relevant to the determination of the meaning to give to the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27. The word “danger” can mean “risk” but also carries with it the meaning of “the condition of being exposed to the chance of evil; risk, peril” (Oxford Dictionary). As is observed in respect of the word, “danger” in Garner’s Modern English Usage, “Idiomatically speaking, one runs a risk, not a danger.” Yet, as a matter of ordinary experience of English idiom, the word, “danger” on a public warning sign conveys a very different and heightened sense of potential peril than would the word, “risk”. Indeed, for that reason, and again as a matter of ordinary experience, it is rare, if at all, that one encounters a warning sign with the word, “risk” in prominence. “Danger” and “risk” are not, in English usage, in my view, exact synonyms. When regard is had both to the text and to the nature and purpose of the provision, it is inherently unlikely that, the word, “danger”, as found in the exception, refers to a risk that is discernible but which is trivial, nothing more than a bare possibility.’
[112] Ibid, [83].
[113] Ibid, [72].
His Honour held that, read in context, ‘danger’ in section 36(1C) means ‘present and serious risk’, and to the extent that WKCG suggested otherwise, His Honour disagreed.113F[114] He stated:114F[115]
‘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 than just ‘risk’.’
(Emphasis added)
[114] (2019) 269 FCR 636, 83.
[115] Ibid, [83].
Logan J’s comments have resulted in a perceived tension in the current case law regarding the interpretation of ‘danger’ in section 36(1C) of the Act. The Respondent submitted that the differing approaches of Deputy President Tamberlin and Logan J can be reconciled.115F[116] The Respondent cited the following passage from HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs 116F[117] where the Tribunal considered there was no inconsistency between WKCG and DOB18 and observed:117F[118]
‘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 cannot 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.’
[116] RSFIC, 4-5.
[117] [2020] AATA 1967.
[118] Ibid, [64].
In SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration),118F[119] Senior Member Dr M Evans-Bonner agreed that the views of DP Tamberlin and Logan J can be reconciled. In KQBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration),119F[120] the Tribunal respectfully agreed.
[119] [2021] AATA 1515 at [39].
[120] [2021] AATA 2917 at [89].
In LKQD v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs,120F[121] Jackson J rejected a contention that ‘danger’ referred to in section 36(1C) should be construed to mean a ‘very serious danger’, finding that it simply said ‘danger’.121F[122] His Honour considered the remarks of Logan J and held, without deciding their correctness, that even the ‘present and serious risk’ standard did not rise to the level of ‘very serious danger’.122F[123]
[121] (2019) 167 ALD 17.
[122] Ibid, [57].
[123] Ibid, [62].
In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,123F[124] Bromberg J explained in obiter that the statutory criterion of ‘danger’ in section 36(1C) suggests a ‘high level of risk’ and that this reflects the balancing exercise contained in Article 33(2) to which section 36(1C) gives effect:124F[125]
‘Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]). …
That a stringent level or standard is required by s 36(1C) in relation to the prerequisites that must exist to engage its operation is explained by the nature of the balancing exercise by which those standards have been formed. A host State’s tolerance of the risk of harm is understandably higher in relation to people who are in need of protection and who, in the absence of being provided protection, may face significant harm.’
[124] [2020] FCAFC 108.
[125] Ibid, [54]-[55].
Consistently with the above authorities, the Tribunal finds that section 36(1C)(b) requires an assessment of whether the Applicant presents a real and significant possibility of ‘danger to the Australian community’, and that ‘danger’ requires a qualitatively higher level of possible harm and ‘conveys a very different and heightened sense of potential peril than would the word, “risk”’. A stringent standard is required in order to give effect to Australia’s obligations under Article 33(2) of the Refugee Convention, which section 36(1C) is intended to codify.
In WKCG, Deputy President Tamberlin identified some of the factors relevant to an assessment of whether a person is a ‘danger to the Australian community’:125F[126]
‘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 …’
[126] Ibid, [26]-[27].
These factors provide useful guidance for an assessment of whether the Applicant is a ‘danger to the Australian community’. However, as Senior Member Morris observed in FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration),126F[127] this list should not be taken to be exhaustive, and regard must be had to all the circumstances of each individual case.
[127] [2021] AATA 1513, [124].
Seriousness and nature of the crimes committed
The Applicant’s ‘particularly serious crimes’ involved violence against and inflicted harm on his victims. His repeated use of violence, including punching, elbowing, spitting and dragging an elderly man from his car so he could steal it, demonstrate that his criminal conduct involves offences that are serious in nature, and that his repeated engagement in such conduct raises concerns that he may continue to be a danger to the Australian community.
The Applicant’s ‘particularly serious crimes’ are aggravated by the fact that his violent and intimidatory conduct was unprovoked and targeted against an unsuspecting elderly member of the community, and multiple police officers acting in the course of their duties, who are entitled to safety in going about their daily lives and work and not be subjected to threats, harassment and violence. In doing so, the Applicant committed violent offences which caused physical and psychological injuries to his victims.
These offences are also aggravated by definition under the relevant criminal law in South Australia. The Commit theft using force (aggravated offence) offence was committed by the Applicant against a man over the age of 60, and the police officers who were assaulted by the Applicant, were acting in the course of their official duty.
The Applicant has shown his propensity to engage in violent behaviour, including following a clear warning from Magistrate Gurry on 27 March 2015 about the seriousness of his conduct. The maximum penalty for the offences for which the Applicant was convicted on this date was four years imprisonment. The Applicant was treated relatively leniently by the Court, in that he was given an 18 month good behaviour bond. Despite this leniency and the warning given to him by the Magistrate, the Applicant went on to commit his most serious offending just eight months later. For this offending, the Applicant received his first sentence of imprisonment. The substantial sentence of three years and four months imprisonment that Judge Brebner imposed on the Applicant on 10 May 2016, indicates the seriousness of this offending.
The number and pattern of the Applicant’s violent offending and its escalating seriousness are such that his behaviour poses a threat of serious harm to members of the public and supports a finding that he is a danger to the Australian community.
Length of the sentence imposed
On 27 March 2015, the Applicant was sentenced to an 18 month good behaviour bond for Assault police. At a minimum, the maximum penalty for assaulting an officer in the execution of their duties is five years imprisonment. On 10 May 2016, the Applicant was sentenced to two years and nine months imprisonment for Commit theft using force (aggravated offence). As noted earlier, the maximum penalty for this offence is life imprisonment. On the same date, the Applicant was also sentenced to nine months imprisonment for Aggravated assault without weapon against a police officer (two counts). At a minimum, the maximum penalty for assaulting an office in the execution of their duties is five years imprisonment.
Having regard to the maximum penalties available for these offences, there is no single term of imprisonment that indicates that the Applicant’s offences were considered to be at the serious end of offending. Nevertheless, he has been sentenced to a period of imprisonment. In PNLB and Minister for Immigration and Border Protection,127F[128] the Tribunal noted ‘[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.’ The custodial sentence imposed on the Applicant on 10 May 2016 by Judge Brebner of three years and four months indicates that His Honour considered the Applicant’s offending to be very serious. The Tribunal finds that the imposition on the Applicant a custodial sentence is an objective indicator of the seriousness of his offending and supports a finding that he is a danger to the Australian community.
[128] [2018] AATA 162, [22].
Mitigating and aggravating circumstances
The Applicant did not make any positive arguments to the Tribunal as to any mitigating circumstances surrounding his offending. However, there are a number of matters which arise from material before the Tribunal that may be said to have contributed to the Applicant’s offending. These are considered below as potential mitigating circumstances.
Traumatic background
The evidence before the Tribunal is that the Applicant arrived in Australia as a teenager after fleeing the civil war in Sudan. He had a very difficult childhood having been separated from his mother at a young age, and not ever knowing his father who died before he was born. He was forced to relocate within Sudan with his aunt and sister to an area where they experienced poverty and were surrounded by conflict. After being reunited with his mother in Kenya some 10 years after she fled Sudan, the Applicant was able to attend school prior to being resettled in Australia as a refugee in May 1999. The Applicant clearly experienced significant instability in his formative years and likely witnessed numerous traumatic events, including deaths, whilst he was living in conflict zones. In his sentencing remarks dated 10 May 2016, Judge Brebner referred to the Applicant suffering from a ‘deprived, dysfunctional and violent upbringing’, and being subjected to great hardship prior to coming to Australia as a refugee.
The evidence before the Tribunal is that the Applicant adjusted well to life in Australia. He finished year 12 and went on to complete a TAFE course and an apprenticeship as a printer. He enjoyed periods of gainful employment from 2002 to 2015. Whereas he committed offences during this period, his most serious and violent offending occurred in 2015, some 16 years after his arrival in Australia.
The Tribunal finds that the Applicant’s exposure to war, conflict, violence, and trauma prior to arriving in Australia is a mitigating factor in his offending. The instability and fear he experienced in his formative years likely contributed to his perception of being a victim, which in turn contributed to his violent criminal offending and other violent conduct. However, these factors do not lessen the objective seriousness of the Applicant’s criminal offending, nor do they decrease the likelihood he will pose a danger to the community. This is particularly so when, as discussed below, he has not taken full responsibility for his offending, he does not acknowledge that he suffers from an alcohol use disorder, and his mental health condition has not been fully diagnosed or treated.
Homelessness
In his correspondence with the Department, the Applicant indicated that his eviction from his home by his landlord resulting in him being homeless and unemployed were contributors to his offending which resulted in the convictions and sentence of imprisonment he received in May 2016.128F[129] The sentencing remarks of Judge Brebner also acknowledge that the Applicant had been evicted in November 2015 and had been left unemployed and facing homelessness prior to his most serious offending on 28 November 2015.129F[130] The Tribunal accepts that the Applicant was in a difficult and vulnerable position in November 2015, being unemployed and homeless. However, this does not lessen the gravity of his offending, which included a violent assault on an elderly gentleman.
[129] Exhibit R1, T17, 213-214.
[130] Ibid, T16, 201.
The Applicant’s evidence to the Tribunal that he wanted to steal the victim’s car so that he would have shelter is no justification for his violent act against his vulnerable victim. That the Applicant considered it acceptable to act in this violent manner against an innocent member of the public in order to secure shelter for himself indicates that he is prepared to resort to violence rather than take positive steps to address the difficult circumstances in which he found himself at this time. In the context of the failure by the Applicant to take responsibility for his offending, his willingness to resort to violence when faced with challenging life situations is a strong indicator that he poses a danger to the community.
Provocation
The Applicant claims that the elderly man whom he violently robbed had engaged in terrorising, humiliating, discriminatory, racist, and inappropriate sexually-motivated behaviour prior to the Applicant dragging him from his vehicle.130F[131] This suggests that the Applicant considered that he was provoked into forcibly dragging his victim from his car in an effort to steal it. There is no evidence to support the Applicant’s claims that his victim engaged in such behaviour. Judge Brebner’s sentencing remarks provide no indication that there was provocation by the victim or that he had done anything to precipitate the Applicant’s violent conduct. The Tribunal does not accept that the Applicant was provoked by his victim into violently assaulting him to steal his vehicle. Accordingly, it finds that this cannot be considered a mitigating factor in the Applicant’s commission of this violent offence. The fact that the Applicant considers that provocation by a victim is a justification for violent offending is a further indicator that he poses a danger to the community.
Alcohol abuse
[131] Exhibit R1, T17, 214.
Much of the Applicant’s criminal offending was committed when he was intoxicated. In his sentencing remarks dated 27 March 2015, Magistrate Gurry noted that alcohol had been a factor in the Applicant’s significant record of past offences. He warned the Applicant that ‘unless you do something about your drug and alcohol problems you will continue to offend and you will be in custody for longer and longer periods’. In sentencing the Applicant to an 18 month good behaviour bond, Magistrate Gurry stated that a condition of the bond was that the Applicant obey the directions of an officer of the Department of Correctional Services in respect to undertaking and completing counselling, courses or programs designed to assist him with his illicit drug problem and alcohol problem. Despite being specifically warned by Magistrate Gurry that unless he took steps to address his alcohol problem he would continue to offend, there is no evidence before the Tribunal that the Applicant has taken meaningful or adequate steps to deal with his alcohol abuse. The evidence before the Tribunal is that just eight months after committing the offences for which he was sentenced in March 2015, the Applicant committed his most serious offending in November 2015 whilst ‘grossly intoxicated’.
In relation to the offences for which he was sentenced on 27 March 2015 and 10 May 2016, on the basis of the evidence in the respective sentencing remarks, the Tribunal finds that chronic alcohol abuse was a mitigating factor in the commission of the offences because it is a disorder with which the Applicant is afflicted. The Applicant’s intoxicated state adversely affected his inhibitions, judgement, and decision-making capacity in his commission of the offences. However, the Applicant’s intoxication does not lessen the objective seriousness of his criminal offending. Nor does it lessen the Applicant’s moral culpability for his offending particularly in circumstances where, on the evidence before the Tribunal, he has not engaged meaningfully with the opportunities provided to him to address his alcohol abuse. The evidence before the Tribunal is that the Applicant successfully completed Phase 1 of the Making Changes Program on 14 July 2015. Despite this, he went on to commit his most serious offending while ‘grossly intoxicated’ less than six months later.
The Tribunal finds that in addition to the Applicant’s alcohol abuse being a mitigating factor in the commission of his ‘particularly serious crimes’, it is also an aggravating factor in his commission of these offences. It makes this finding based on the evidence that the Applicant had been warned of the likely repercussions of him failing to address his alcohol problem, yet despite this warning and him having the opportunity to seek treatment, he continued to abuse alcohol with reckless disregard for the likely consequences of him so doing. The fact that the Applicant chose to ignore warnings about the likelihood he will re-offend if he failed to take steps to address his alcohol problem, is a strong indicator that he poses a danger to the community.
Mental health
Whereas the Applicant has been assessed by numerous psychiatrists, including Dr Raeside in March 2015 and IHMS psychiatrists during his time in immigration detention since March 2019, there is no consistent or conclusive opinion in relation to his mental health condition, and no diagnosis of a mental health disorder before the Tribunal. The evidence before the Tribunal is that since he entered immigration detention three years ago, the Applicant has been diagnosed as suffering from Bipolar disorder and Psychotic Disorder and as displaying symptoms of thought disorder and paranoia consistent with a psychotic episode. The most recent assessment of the Applicant by an IHMS psychiatrist before the Tribunal is dated 5 May 2022, who reported that the Applicant displayed ‘[n]o evidence of mental illness’ and ‘no current signs of psychosis or mania / hypomania.’ The Applicant’s evidence is that he does not believe he has any mental health issues. In March 2015, Dr Raeside found that the Applicant would benefit from a neuropsychological assessment to investigate a possible underlying cognitive impairment.
Magistrate Gurry referred to Dr Raeside’s report in sentencing the Applicant on 27 March 2015. He noted that the report concluded that ‘you do not suffer from a mental illness, which would go to your capacity to commit the offences, or to form the necessary intention so to do, or to your fitness to plead’.131F[132] In sentencing the Applicant on 10 May 2016, Judge Brebner briefly referred to the Applicant’s mental health. His Honour stated, ‘[w]hen you were in your mid 20s, a combination of unfortunate circumstances led you down to a very low point in your life. Your relationship came to an end. You were made redundant and you were struggling with some mental health issues and indeed you consulted a counsellor’.132F[133] The CLCA contains provisions in relation to mental impairment which relate to mental competence to commit offences and stand trial and alternative verdicts, however His Honour nevertheless recorded a conviction on all matters and sentenced the Applicant to terms of imprisonment.
[132] Exhibit R1, T16, 198.
[133] Ibid, 201.
Accordingly, while the courts that sentenced the Applicant in relation to the ‘particularly serious crime(s)’ referred to his mental health, they did not find it necessary to deal with him under legal provisions in relation to mental impairment. Consequently, in relation to the Applicant’s commission of the offences of which he was sentenced on 27 March 2015 and 10 May 2016, the Tribunal is not satisfied that the Applicant’s offending was mitigated by a diagnosed mental illness.
Extent of the criminal history, period over which prior crimes took place, and criminal record as a whole
In addition to the four criminal offences which meet the definition of ‘particularly serious crime’ as defined by section 5M of the Act, the Applicant has committed numerous other criminal offences in Australia, as recorded in the Table at [25] above. The Applicant arrived in Australia in May 1999 at the age of 17 years. Just over 18 months later, in January 2001, he was found guilty of his first offence, larceny. The Applicant’s offending continued over an approximately 15-year period, and his criminal record spans most of the time he has resided in the community in Australia. In addition to the four ‘particularly serious crimes’ which involved violence, the Applicant’s other convictions include offences involving violence against members of the community or the police, including Fighting, Hinder police and Resist police, demonstrating his disregard for the law and a propensity for violence.
The Applicant’s criminal record also includes convictions for numerous driving, road and traffic offences, which culminated in him being indefinitely suspended from driving in November 2010. The Applicant’s repeated offending for driving without authorisation and whilst under the influence of alcohol demonstrates that he has little regard for the safety of other road users. He also has an equally extensive record of breaching bail agreements and good behaviour bonds demonstrating his disregard of legal authority and court orders.
The evidence before the Tribunal is that during his periods of imprisonment and immigration detention, the Applicant has continued to exhibit violent, aggressive and abusive behaviour, including an extremely serious assault on a detention officer as recently as August 2022. The Applicant’s behaviour in prison or immigration detention cannot be viewed in isolation from his conduct in the community, which supports a finding that he poses a serious and present risk of reoffending and is a danger to the Australian community.
Prospects of rehabilitation, risk of re-offending and recidivism and the likelihood of relapsing into crime
Prospects of rehabilitation
In sentencing the Applicant in May 2016, Judge Brebner referred to his alcohol abuse and its contribution to his criminal offending. His Honour stated, ‘[y]ou were ‘drinking too much and you became an alcoholic and indeed your criminal record is a reflection of much of this.’133F[134]
[134] Ibid.
His Honour noted that the Applicant had been in custody since he was arrested on 28 November 2015 and he had ceased drinking, reflected on his actions, taken responsibility for his actions, and committed to staying sober:
‘You have dried out while you have been on remand and you have reflected on your circumstances. You accept responsibility for your actions. You are remorseful. You believe that you would not have behaved as you did but for your issues with alcohol. You never want to drink again and you are apologetic.’
Having regard to the Applicant’s acceptance of the contribution of alcohol to his criminal offending, Judge Brebner considered that he had ‘reasonable rehabilitation prospects’.
The Applicant’s evidence is that he had not consumed alcohol since he was taken into custody in December 2015, being a period of more than seven years. However, his representations to the Department and evidence to the Tribunal indicated that he fails to recognise or accept his problem with alcohol. For example, in response to a natural justice letter he stated, ‘I am not an alcoholic but if I have one or two to drink that creat (sic) a problem I am being labeled (sic) as alcoholic’.134F[135] In his oral evidence at the hearing, the Applicant stated multiple times that he does not have a ‘problem’ with alcohol, that he drinks ‘just to forget, just calm down’ and he denied that drinking alcohol makes him aggressive.
[135] Ibid, T17, 212.
Whereas the Applicant has been sober for a period of more than seven years, this has coincided with his time in custody and immigration detention. His access to alcohol during this period has been limited by the fact that he has resided in highly controlled and monitored institutions where access to alcohol and drugs is more restricted than in the broader community. His current sobriety therefore is not necessarily indicative of changed behaviour. Indeed, the Applicant’s ongoing claim that alcohol has never been a problem for him suggests that he has not acknowledged the contribution alcohol abuse made to his criminal behaviour. This is in contrast to the representations the Applicant made to Judge Brebner in May 2016, that led His Honour to find that the Applicant had ‘reasonable rehabilitation prospects’.
On the basis of the evidence before it, the Tribunal cannot find that the Applicant has effectively addressed his problem with alcohol, or that he is likely to do so in the foreseeable future. There is no information before the Tribunal to indicate that the Applicant has ever taken any genuine responsibility for addressing his abuse of alcohol, despite having been imprisoned after committing criminal offences while intoxicated. Other than his completion of Phase 1 of the Making Changes Program in July 2015, there is no other evidence to suggest that the Applicant has engaged in education or rehabilitation programs to treat his problem with alcohol and its link to his offending. The Applicant’s unacknowledged, untreated and unresolved issue with alcohol suggest there is a real risk of him relapsing into abusing alcohol if he is released into the community, resulting in him committing further violent offences, given the past connection between his alcohol abuse and his offending.
As the Applicant is not on parole, if he were to return to the community he will resume his life without restrictions or supervision requirements. There will be no orders in place requiring him to attend alcohol rehabilitation courses or to report to community corrections. This lack of supervision or monitoring of the Applicant’s behaviour heightens the risk that he will relapse into alcohol abuse leading him to re-offend and cause harm to members of the Australian community.
It follows that the Tribunal cannot be satisfied that the Applicant has achieved a level of rehabilitation for it to confident that if his visa is reinstated that he will not pose a danger to the Australian community.
Risk of re-offending and recidivism
The evidence before the Tribunal does not contain an independent assessment of the Applicant’s risk of reoffending. A Department of Correctional Services Report dated 20 February 2018 assessed the Applicant to be at ‘moderate to high’ risk of reoffending.135F[136] Having regard to the Applicant’s history of repeat offending over a period of approximately 15 years, the Tribunal finds that the risk of him reoffending remains tangible.
[136] Exhibit R2, ST8, 119.
The Applicant’s convictions for ‘particularly serious crime(s)’ were for offences he committed in the course of about one year. However, he committed numerous other serious offences prior to this period. His criminal record records that between 2001 and 2016, the Applicant was convicted of more than forty criminal offences, with multiple convictions for offences involving violence and including multiple convictions for assaulting or resisting police officers. The Applicant’s criminal record shows that he was treated by the courts with a considerable degree of leniency and patience, such that he was only sentenced to a period of imprisonment following his convictions in May 2016. Despite being made subject to non-custodial punishments including bail agreements, community service orders and good behaviour bonds, the Applicant demonstrated his resolve to defy and breach the same.
The Applicant was warned by the courts about his conduct and how it will affect his life, but he chose not to heed such warnings. When sentencing the Applicant in March 2015, Magistrate Gurry told the Applicant ‘you have had a very chequered history since coming to this country as a young person and it really is time that you thought about what you are going to do with your life’. 136F[137] When he was sentenced, the Applicant had been in custody for 86 days and he was released on the basis of time served, upon entering into a bond to be of good behaviour for a period of 18 months. However just eight months later, in November 2015, the Applicant committed his most serious offences.
[137] Exhibit R1, T16, 199.
On the basis of the evidence before it, the Tribunal finds that the Applicant’s repeated offending in Australia, which escalated in seriousness and included offending which occurred after having been released from custody, indicates that his capacity to behave in accordance with Australian law is deficient. Multiple convictions, including periods in custody, did not have a deterrent effect, and as a consequence the Tribunal cannot be confident that the Applicant will not re-offend if he is permitted to remain in the community.
In making this finding, the Tribunal has had regard to the Applicant’s statements and evidence to the Tribunal that indicate he has not taken responsibility for his criminal conduct. The Applicant has variously claimed to have been arrested by police without reason, to have pleaded guilty to ‘get out of a situation’ or so that he could ‘go home’ to his family, and to have been the victim of human rights violations. He baselessly accused the elderly victim of his aggravated robbery offence in November 2015 of having acted inappropriately towards him, including making sexual advances. These claims indicate the Applicant’s failure to take responsibility for his serious criminal offending. Accordingly, the Tribunal can have little confidence that the Applicant will refrain from further criminal conduct in the future. This finding is further underscored by the evidence before the Tribunal that the Applicant has continued to display aggressive and abusive behaviour and perpetrate violent assaults in prison and immigration detention.
In addition to his failure to take responsibility for his criminal offending, the Applicant has demonstrated little remorse. Whereas he pleaded guilty to the offences for which he was convicted in March 2015 and May 2016, his evidence to the Tribunal is that he did so not because he had reflected on his behaviour, or because he knew what he had done was wrong. Instead, his evidence is that he considered pleading guilty to be a way to evade a custodial sentence. He claims to be sorry for his violent conduct against his elderly victim but maintains that he was provoked by the victim’s inappropriate behaviour.
Given that the Applicant continues to deny any wrongdoing and refuses to take responsibility for his actions despite the passage of three and a half years, and him being incarcerated in gaol or immigration detention for the duration of this period, the Tribunal cannot be confident that his attitude will change in the future. The Applicant’s failure to take responsibility for his criminal conduct, together with his lack of insight into the seriousness of his offending, supports a finding that the Applicant is a danger to the Australian community.
Likelihood of relapsing into crime
Mental health condition
While the most recent psychiatric assessment found no evidence of the Applicant suffering a mental illness, the historical concerns raised by various psychiatrists in relation to the Applicant’s mental state are relevant to a consideration of the likelihood he will relapse into crime. The evidence before the Tribunal is that he has repeatedly declined to engage with IHMS mental health services while in immigration detention.137F[138] The Applicant’s evidence is that he does not believe he has a mental illness. Accordingly, the Tribunal cannot be satisfied that if the Applicant were to return to the community that he would seek treatment if he were to experience symptoms of thought disorder and paranoia consistent with a psychotic episode as he has done in the past. The Applicant’s refusal to accept that he has a vulnerability with respect to his mental health is a further example of his failure to recognise that he has issues which need to be addressed and monitored if he is to avoid relapsing into crime. Accordingly, the Tribunal cannot be satisfied any deterioration in the Applicant’s mental health will not contribute to him re-offending and finds that this is a strong indicator that he poses a danger to the community.
Conduct in immigration detention
[138] Exhibit R2, ST11, 181, 184, 196, 197, 209.
The evidence before the Tribunal is that since entering immigration detention in March 2019, the Applicant has been involved in numerous incidents, many of them involving aggressive, abusive and violent behaviour as detailed in [62] above. The evidence includes reports of physical violence by the Applicant towards detention centre staff, by whom the Applicant claims he was targeted. The reports of the Applicant’s aggressive and violent acts in immigration detention, as recently as August 2022, are such that the Tribunal cannot have any confidence that since his incarceration in December 2015, he has developed the capacity to deal with situations that he finds stressful, intimidating or frustrating.
The Applicant’s reported ongoing misconduct in immigration detention demonstrates that he has serious issues with anger management and self-control, problems with authority and an inability or unwillingness to back away from, de-escalate and resolve conflict. These unaddressed issues raise serious concerns about his risk of re-offending and relapsing into crime in the community where there would be fewer constraints on his conduct.
The Tribunal finds that the Applicant has demonstrated that he is ill-equipped to deal with any stressful episodes that he experiences without resorting to aggressive or violent behaviour, and that this supports a finding that the Applicant presents a danger to the community.
Protective factors
There is limited evidence before the Tribunal of protective factors that will support the Applicant to return to the community and limit the likelihood of him re-offending. He told the Tribunal that he plans to return to Victoria and live with his mother. He said he has a girlfriend who is ‘waiting’ for him, although he has not been in contact with her for more than six months and she refuses to take his calls. As regards employment, the Applicant’s evidence is that he plans to go back to graphic art school or work in printing or manufacturing. He claims that he has been in contact with his former supervisor at the printer where he worked in South Australia, who said he could give him a job. When questioned about how he will live in one State and work in another, he said that he would travel back to Victoria every weekend. He said that he would live with a friend in South Australia but agreed that he has not confirmed this with his friend as he has not responded to his text message. The Applicant’s evidence indicates that there is very little by way of concrete plans and supports available to him if he were to re-enter the community.
The Applicant has been in prison or immigration detention for a period of more than seven years. As a consequence, he may find it challenging to find employment and re-connect with work colleagues and friends if he were to return to the community. The Applicant’s stated desire to ‘work and stay active’ while genuine, may be difficult for him to realise and may therefore not reduce the risk of him re-offending and the likelihood of him relapsing into crime.
There is limited evidence before the Tribunal of family and community supports available to the Applicant which would assist with his rehabilitation and reintegration if he were to return to the community. The letter from the Applicant’s family dated 26 August 2019 states that he ‘will receive every bit of support from us to rehabilitate back into society, to continue to make the necessary and positive changes he has been making to rebuild his future and reconnect with family members.’138F[139] The Applicant’s family is undoubtedly sincere in their desire to see the Applicant released from immigration detention and in their intention to support him in his transition back into society. However, the Applicant migrated to Australia with his family in 1999 and the support they provided to him was evidently insufficient to ensure that he was law-abiding given his repeated offending between 2001 and 2015. Consequently, the Tribunal cannot be confident that support from his family will be effective in ensuring the Applicant does not relapse into crime in the community.
[139] Exhibit R1, T17, 209.
Based on an evaluation of the factors identified by Deputy President Tamberlin in WKCG, the following is a summary of the Applicant’s behaviour and circumstances which support a finding that he presents a real and significant possibility of ‘danger to the Australian community’:
a)The Applicant’s crimes are objectively serious and violent in nature, involving both actual and threatened physical violence against his victims, who included an elderly gentleman.
b)Any mitigating circumstances identified in the Applicant’s offending are outweighed by countervailing aggravating circumstances, in particular the influence of alcohol abuse on the Applicant’s conduct, his propensity to target vulnerable victims, and his lack of responsibility for and insight into his offending.
c)The Applicant’s criminal conduct over a 15-year period was repeated despite warnings and lenient treatment by the courts and escalated in seriousness, ceasing only when he was incarcerated.
d)There is a strong likelihood of the Applicant re-offending, given his demonstrated propensity to re-offend in the past, his ongoing denial of responsibility for his criminal behaviour, and his unaddressed and untreated alcohol abuse disorder and mental health condition.
e)The Applicant has made some progress towards rehabilitation by ceasing to drink alcohol, however he denies that he has a problem with alcohol which, in the absence of strong protective factors including secure accommodation and regular work, creates a real risk he will relapse into alcohol use and reoffend if he returns to the community.
Conclusion
For the reasons outlined above, the Tribunal finds that the criterion in section 36(1C)(b) of the Act are satisfied for reason that the Applicant:
(a)has been convicted by a final judgment of a particularly serious crime; and
(b)is a danger to the Australian community.
Decision
The Reviewable Decision of the delegate of the Respondent dated 30 March 2022 to refuse the Applicant a Protection (Class XA) (Subclass 866) visa under section 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
.................................[SGD].......................................
Associate
Dated: 27 February 2023
Date(s) of hearing: 26 and 27 September 2022 Applicant: In person Solicitors for the Respondent: M. Donald and A. Taverniti of Sparke Helmore Lawyers
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