JRJZ v Minister for Home Affairs
[2018] AATA 3687
•3 October 2018
JRJZ and Minister for Home Affairs (Migration) [2018] AATA 3687 (3 October 2018)
Division:GENERAL DIVISION
File Number: 2017/7396
Re:JRJZ
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Rayment QC
Date:3 October 2018
Place:Sydney
The reviewable decision is set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia.
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Deputy President Rayment QC
CATCHWORDS
MIGRATION – Protection (subclass 866) visa cancellation – applicant held to be a non-citizen in respect of whom Australia has protection obligations – definition of a “particularly serious crime” – definition of “danger to the Australian community” – involves consideration of the whole of the relevant facts and circumstances – support from family and partner – severance of ties with gang – secured employment opportunity – no reasonable grounds which find that the applicant is a danger to the Australian community – reviewable decision is set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia
LEGISLATION
Migration Act 1958, ss 5, 5M, 36(2), 36(1C), 36(2C), 501(6)
CASES
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
SECONDARY MATERIALS
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), art 33
REASONS FOR DECISION
Deputy President Rayment QC
3 October 2018
BACKGROUND
The applicant immigrated from Iraq in 1997 when he was 7 years old. His visa was cancelled in 2015 on account of a lengthy criminal history. Today he is aged 29.
He was last at liberty in 2015, having then been released from gaol on parole. According to his police certificate, his last offence was committed in 2012.
The applicant applied for a protection visa on 15 June 2017 under s 36 of the Migration Act 1958 (the Act).
On 19 October 2017, a delegate of the Minister found that the applicant is a non-citizen in respect of whom Australia has protection obligations, both as a refugee and as a person in respect of whom there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to the country of his nationality, that is, Iraq, there is a real risk that he will suffer significant harm. Thus, it was found that both limbs (a) and (aa) of s 36(2) were satisfied. Neither party submitted to the contrary, and the delegate’s reasoning on those matters appears to me to be sound.
RELEVANT LAW
Section 36(2) provides as follows:
A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(c)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(d)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
Section 36(2)(a) attracts s 36(1C)(b) which is in the following terms:
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a)Is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Section 36(2)(aa) attracts s 36(2C)(b)(ii) which is in the following terms:
Ineligibility for grant of a protection visa
(2C)A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a)the Minister has serious reasons for considering that:
(i) the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non‑citizen committed a serious non‑political crime before entering Australia; or
(iii) the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b)the Minister considers, on reasonable grounds, that:
(i) the non‑citizen is a danger to Australia’s security; or
(ii) the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
There is a deeming provision in s 5M of the Act which operates as an inclusive definition for the purposes of s 36(1C)(b), but, curiously, not for the purposes of s 36(2C)(b)(ii). Section 5M is in the following terms:
5M 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.
The words “serious Australian offence” in s 5M of the Act have a definition in s 5 of the Act, which is in the following terms:
serious foreign offence means an offence against a law in force in a foreign country, where:
(a)the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; and
(b)if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been 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.
The expressions “particularly serious crime” and “danger to the Australian community” have no definitions in the Act, save for that which is set out in s 5M in relation to s 36(2)(a). Cognate terms are used in the Refugees Convention which seems to have inspired s 36(2)(a) and s 36(1C), but nothing in the treaties which inspired s 36(2)(aa) seems to have inspired s 36(2C)(b)(ii), which is therefore clearly a departure in domestic law from the terms of the conventions in question. The treaties relevant to s 36(2)(aa) have no equivalent of Article 33(2) of the Refugees Convention. Article 33 provides as follows:
Prohibition of expulsion or return ("refoulement")
(1)No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(2)The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
Crimes for which the applicant has been convicted fall within the inclusive definition contained in s 5M so that, in relation to s 36(2)(a), it must be taken that the expression, “particular serious crime”, is to be found adversely to the applicant, but in relation to s 36(2)(aa), that question is not precluded adversely to him.
The applicant accepted, by his legal representative, that he had committed particularly serious crimes. Despite the absence of submissions from the applicant on the matter, I have considered whether (for the purposes of s 36(2C)(b)(ii)) it may be said that the crimes of which the applicant was convicted before Judge Sides in 2012, or either of them, were “particularly serious crimes”. Only if I had concluded that the question should be answered in the negative would I have needed to invite submissions from the respondent, since the matter was the subject of a concession by the applicant during the hearing.
The expression “particularly serious crime” directs attention to all of the circumstances of the offence, rather than just to the maximum penalty fixed by statute, unless the case is one to which the deeming provisions of s 5M are applicable. No one factor will necessarily govern a conclusion as to whether a crime is “particularly serious”. For example, very serious circumstances may not have so appeared to a sentencing judge, and a light sentence imposed by a particular magistrate may not be enough to prevent the crime being regarded as “particularly serious”. The conviction itself cannot be doubted although the characterisation of the crime itself as “particularly serious” is a matter for the decision-maker, and at this stage, for the Tribunal.
Another factor which may be relevant in a particular case is where the crime stands in relation to other crimes, and where it stands in relation to other breaches of the same statutory provision. A high order of seriousness is suggested by the word “particularly” in the phrase. Remarks on sentence are clearly to be taken into account in answering the question of whether a particularly serious crime has been committed by a non-citizen. Another matter to be mentioned is that the crime may have been committed overseas, and foreign legal provisions may have affected the sentence imposed for the “particularly serious crime” may have been committed overseas, although that is not this case.
IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?
On 30 November 2010, the applicant, then a relatively new member of an organised criminal network (‘the gang’), as part of a group of twelve persons, went to a Turkish café at Mount Druitt. Most of the twelve, including the applicant, were armed with baseball bats. Two victims were working there, one of whom was the treasurer of an outlaw motorcycle gang. That person was hit repeatedly with a baseball bat and punched by other members of the gang. The applicant hit him in the area of the ribs with his baseball bat. The offence at the café was committed by the gang for the purpose of retribution. The judge found that the injuries inflicted (which together did not amount to serious bodily harm, and could have been more serious) were quite calculated. The judge described the offences, involving as they did a joint criminal enterprise as mid-range offences. They carried a maximum penalty of ten years imprisonment (which the judge did not impose upon the applicant). The applicant did not plan or direct the offence, and participated as a follower rather than a leader.
It was a serious crime, involving violence. Membership of an organised criminal network, and the following of the purposes of that network, and forming part of a group of twelve persons all armed with baseball bats, at the time of commission of the offence is a matter which in my opinion, elevates the seriousness of the offence, perhaps enough to turn the offence into a particularly serious crime.
One matter which the statute leaves unclear is whether any distinction is intended between a very serious crime and a particularly serious crime. Is more than that the crime is very serious required? The consequence of failing to obtain a protection visa on complementary protection grounds follows if the decision-maker concludes both that the visa applicant has been convicted of a particularly serious crime and that he or she is a danger to the Australian community. Failing to obtain a protection visa, if complementary protection obligations are owed in respect of the applicant, it might have very serious consequences for the visa applicant. If the person is not (also) a danger to Australia, of course, the protection obligations will not be lost.
I think that to ask whether something more than a very serious crime is involved, is an approach which may distract a decision-maker. Rather, I think, the decision-maker should simply ask himself or herself: was the crime one which was a particularly serious crime as one understands those words of ordinary English to be used? That question I would answer in the affirmative.
The other crimes for which the applicant was sentenced by Judge Sides were committed on 21 February 2011, and included an offence of attempted specially aggravated break and enter with intent to intimidate, committed at a home with three others at Mount Druitt. The applicant was armed with a knife on this occasion, and one person with him was armed with a shotgun, and another with a revolver. The home invasion was unsuccessful, apparently because a gun was discharged, I gather by a person inside the home. In other words, the applicant, in fact, engaged in no acts of violence although he was armed with a knife. The other two persons were from the gang. The arms involved, and the presumed intention to use them also suggest to me that a particularly serious crime was involved, even though violence was not actually used.
Judge Sides sentenced the applicant to a total of five years imprisonment, with an overall non-parole period of thirty-four months, expiring on 1 June 2014. He took into account that the applicant, then in his early twenties, was not of good character having previously been convicted of offences as a juvenile. A summary of his police record prior to the sentencing remarks of Judge Sides is set out at Annexure A of these reasons.
Judge Sides found that the applicant was remorseful, and that his prospects of rehabilitation were good. He also found that he had been employed for a total of about 17 months, and that he intended to sever all links with the gang, whose instructions he had followed at the time of the offences.
In each case, the question arises whether the applicant is a danger to the Australian community. I have had the advantage of seeing and hearing the applicant in the witness box and of hearing the evidence of those who gave evidence on his behalf. For reasons which follow, I have decided that the applicant does not constitute a danger to the Australian community. I agree with the Hon B Tamberlin QC, Deputy President who said in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 concerning Article 33 of the Refugees Convention, that the requirement of having committed one or more particularly serious crimes is a gateway provision, rather than something with a causal relation to the question of whether he or she is a danger to the Australian community. That proposition seems to me to be also true of s 36(1C) and s 36(2C).
I also agree with DP Tamberlin that the question of whether the non-citizen is a danger to Australia is to be determined having regard to all the facts and circumstances of the non-citizen, whether or not related to the crimes of which he has been convicted, but including the facts and circumstances of those convictions.
Meaning of “danger to the Australian community”
The first matter which I examine is the meaning of the expression, “danger to the Australian community”.
In WKCG and Minister for Immigration and Citizenship [2009] AATA 512 the Hon B Tamberlin QC, Deputy President, examined the meaning of Article 33(2) and said at [25], [26], [29]-[31]:
25.The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
26.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.
…
29.As a matter of interpretation, in my view, the reference to the words “having been convicted” operate to limit the class of persons on whom the provision operates and that the question whether a person “constitutes a danger” is a separate additional matter to be independently established. The reference to “having been convicted” is analogous to a prerequisite to the exercise of the power independent of the other criterion. This conclusion is supported by extrinsic material including the Second Reading speech and the relevant Explanatory Memorandum. Therefore, once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community. Of course, the nature and circumstances of the conviction or convictions will generally be highly relevant to the question whether the person can be described as being a “danger”. However, it is not conclusive. It is necessary to look at the person's conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions. In other words, if a person is convicted for a crime of violence and it later transpires that he or she may constitute a danger to the community in another area, such as drug trafficking, such a person may come within the exception provided for in the Article. Accordingly, I agree with the submission made by the respondent Minister and reject the submission of the applicant that the particular offences for which the person has been convicted must always somehow be causally linked to the type of danger to the community.
30.Counsel for the applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a “real probability” of harm being caused to the community.
31.The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.”
In SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40, the Full Court of the Federal Court considered a case involving the meaning of Article 33. It did not directly involve the construction of the expression “danger to the [Australian] community” because both parties accepted that the remarks made by DP Tamberlin in WKCG were correct. Nevertheless, Jagot and Barker JJ said, with the agreement in this respect of Flick J:
52.The problems with this argument are two fold. First, mere damage to property is insufficient. There must be “serious” damage to property before the offence may be classed as “particularly serious crime”. Second, ss 197A and 197B of the Migration Act have a very limited scope. Section 197A makes it an offence to escape from immigration detention. Section 197B makes it an offence for a detainee to manufacture, possess, use or distribute a weapon. The plank in the appellant’s argument which depends on “particularly serious crime” extending to relatively low-level offences is not supported by the terms of s 91U. Second, it is not enough that a refugee be finally convicted of a “particularly serious crime” before the refugee loses the protection against refoulement in Art 33(1). In addition, the relevant decision-maker must find that the refugee, having been so convicted, constitutes a danger to the community. The test for such danger, accepted in this case before the AAT, was that expressed in WKCG at [25] of “real or significant risk or possibility of harm to one or more members of the Australian community”, it not being necessary to establish “a probability of a real and immediate danger of present harm”. The correctness of that test was not in issue in the appeal. Whatever the correct test, the relevant point for present purposes is that the requirement exists and is additional to the finding of conviction of a particularly serious crime.
The Full Court did not adopt the reasons of DP Tamberlin, but nor did they reject them. The most that may be said is that the Full Court failed to endorse the “real chance” test proposed by DP Tamberlin.
The expression “danger to the Australian community” is to be construed in its context, but has no technical meaning. The phrase is used in both s 36 and s 501(6)(d) of the Act, albeit in slightly different contexts. The language is that of ordinary English. Whether it is satisfied involves a close consideration of the whole of the relevant facts and circumstances as they present today. I am not sure that there is any one test as such. The view that a person is a danger to the Australian community can be held in a variety of circumstances. Prior criminal conduct is obviously relevant. The degree of risk of recidivism is obviously relevant, and that requires attention to his motivation not to re-offend. What rehabilitation a person has undergone is obviously relevant. When his last offending occurred is relevant. The views of those who know him well can be relevant.
Consideration of the Applicant’s facts and circumstances
The applicant was released on parole in 2014 and was at liberty for nine months. In that period, his parole was threatened to be revoked because he was at the Sydney casino and he was seen to be drinking in the company of a former gang member whom he knew, and that led to him being warned that his parole would be revoked if he did such a thing again. The applicant said that he knew he was required to have no association with gang members as a condition of his parole. He said that he did not think that being in the company of the person in question was a breach of his parole conditions because that person no longer belonged to a gang, and the few hours spent in his company at the casino, including at its bar, were in public.
He said that his parole was revoked in 2015 because he faced further charges which I was told were dismissed at the committal stage and were later, after the charges were laid on indictment, the subject of a no-bill which led to him being discharged by Judge McLennan in October 2016. He was then taken into immigration detention.
He said that he was told that the fresh charges led to his parole being revoked, but after he was incarcerated, was given a paper stating that his parole was revoked for breach of parole conditions.
The applicant said that the alleged victim was his cousin and that he has no idea why he was not available at the trial, which apparently led to him being no-billed. Beyond being asked whether he had had contact with the cousin, which he denied, no details were elicited from him about any circumstances relating to the charges on which he was no-billed. I am unable to form any view adverse to the applicant on this matter.
Much has changed since his last offence of 2011, some seven years ago. He no longer has any connection with the gang or any of its members or former members.
Importantly, he has formed a relationship with a young lady in good standing, who is employed by the Commonwealth Bank. He has been in detention at Christmas Island where she has visited him on three occasions. They intend to marry and want to have a family. She gave evidence before me. The applicant was cross-examined to suggest that their relationship was not genuine, and was put forward as a person whom the applicant intended to marry only in order to bolster his prospects of success on this review. Parallels were sought to be drawn with earlier girlfriends whom the applicant had previously put forward as intended partners. His girlfriend was cross-examined about the genuineness of their relationship.
I reject the suggestion put to the applicant. On the contrary, both she and the applicant satisfied me that their relationship is genuine and affectionate. I accept that they intend to marry and that she is devoted to him.
Travel to Christmas Island to be with the applicant has been expensive for his girlfriend. Twice, she spent several days there, from Tuesday to Saturday, and on the third occasion, she spent two weeks there. She went through passport control in Perth, before taking a three to four hour flight to and from Christmas Island. They spoke by telephone daily.
She has also formed a friendship with the applicant’s family members in Sydney while the applicant has been in detention, and has been trying to go to his mother’s house at least weekly.
When asked by me whether she would go with him if he were sent back to Iraq, the applicant said that she had offered to do so, but he had said he would not let her do so, because her life would be in danger there, and because of her close ties to Sydney, where she also has family of her own.
As the delegate found in the reviewable decision, the applicant’s life would be at risk if he were returned to Iraq, because he would be identified both by his name and by other means as an Assyrian Christian, and his life would be at risk throughout that country.
The applicant is now more mature than he was in 2010 and 2011. He recognises that he will remain at risk of visa cancellation and has now spent much of the last six years in correctional facilities and detention. He faces the loss of his intended wife, his family and all that he is familiar with in this country.
He described his earlier life as “living a lie” and said that he put his family through hell and is ashamed of it.
He took drugs from an early age, although they were not found to have influenced the commission of his offences of 2010 and 2011. He has been drug-free since 2011 or 2012.
He has arranged what could turn out to be a permanent job with the brother of a school friend, who gave evidence before me. Subject to satisfactory performance, he will keep that job. The employer would train the applicant himself. It would be a full-time job starting at 7 am until 5 pm.
The applicant gave evidence that he has severed all links with the gang. He said he has come to realise that they don’t care about him, and he firmly intends to have nothing to do with them. There were gang members in the correctional facilities, and he has had nothing to do with them. His involvement in the particularly serious crimes to which I have referred was gang-related. Separation from that gang is something that his girlfriend will encourage, as will his family members who gave evidence before me. I accept that the applicant firmly intends to have no further connection with organised criminal networks.
His elder sister said she had observed a change in him. She said that the present procedures of the Minister had shaken him up.
I heard from a forensic psychologist who examined the applicant by telephone over two and a half hours while he was in detention on Christmas Island in April this year. She assessed him as a low to moderate risk of re-offending, noting that the items which influenced his score were historical in nature, and that his prognosis was considered positive because of the high level of support he receives from his family and partner, his expressed remorse, and his motivation towards engaging in counselling in the future. She also spoke with his mother, elder sister and partner, and formed the view that they would all provide good support to him.
I also heard from another sister of the applicant and a sister of the girlfriend, who confirmed some other evidence before me.
DECISION
Putting the various findings I have made together as to the position of the applicant since his last offending in 2011, and having attempted to estimate him in the witness box, and having heard what was said about him by his intended wife and the family members, I do not think that there are reasonable grounds for considering him to be a danger to the Australian community. I think it is likely that the community will be safe from him. The reviewable decision will therefore be set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia.
ANNEXURE A
| Conviction Date | Offence | Sentence |
| 22 Jul 2004 | Robbery in company | Convicted. Probation for 9 months under supervision. |
| 21 Feb 2008 | Shoplifting | Proven. Dismissed with caution. |
| 22 Jan 2009 | Not comply with request to submit to search | Without Conviction. Released on entering bond to be of good behaviour for 9 months. |
| 20 Feb 2009 | Goods in personal custody suspected of being stolen | Convicted. No further penalty imposed. |
| 5 May 2009 | Never licensed person drive vehicle on road | Convicted. Fined $450. Driver’s licence disqualified for 6 months. |
| Driver with seatbelt not adjusted/fastened | Convicted. Fined $200. | |
| 15 Jun 2011 | Incite to assault police officer in execution of duty | Convicted. Fined $800. |
49. I certify that the preceding 48 (forty-eight) paragraphs and Annexure A are a true copy of the reasons for the decision herein of Deputy President Rayment QC
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Associate
Dated: 3 October 2018
Dates of hearings: 18 June 2018; 16-17 July 2018 Date final submissions received: 17 August 2018 Solicitors for the Applicant: Mr R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent: Ms D Watson, Australian Government Solicitors
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