JTSG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1842 (23 June 2023)
Appid: JTSG and Minister for Immigration, Citizenship and Multicultural Affairs
Mattertype: Migration
Division:GENERAL DIVISION
File Number:2022/4812
Re:JTSG
APPLICANT
Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:23 June 2023
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated 19 May 2022 to refuse to grant the Applicant a SHEV under s 65 of the MigrationAct 1958 (Cth), is affirmed.
.............[Sgd].....................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – refusal to grant a protection visa – Applicant has been convicted by a final judgment of a particularly serious crime – offences included kidnapping, extortion and assault occasioning bodily harm – numerous incidents in prison and immigration detention – whether Applicant is a danger to the Australian community – factors from WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 considered including extent of the criminal history, seriousness and nature of the crimes, mitigating or aggravating circumstances, risk of reoffending and recidivism and the likelihood of reoffending – Applicant found to be a danger to the community – Reviewable Decision affirmed
LEGISLATION
Criminal Code (WA) s 317, 332, 397(2)
Migration Act 1958 (Cth) – ss 5, 5(1)(a)(i), 5(1)(b)(iii), 5M, 5M(a), 36(1C), 36(1C)(b), 36(2), 36(2C)(b), 65, 65(1), 501(3A), 501BA, 501F(2)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Road Traffic Act 1974 (WA)
CASES
DOB18 v Minister for Home Affairs (2019) 269 FCR 636
DOB18 v Minister for Home Affairs [2019] HCASL 331
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17
SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1515
TYXB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 9
WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434
SECONDARY MATERIALS
Refugee Law Guidelines: Procedural Instruction (Department of Home Affairs, reissued 27 November 2022)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967) – Art 33(2)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
23 June 2023
BACKGROUND
The Applicant is a 40-year-old man who is a citizen of Iraq.
He first arrived in Australia on 4 August 2001 as an unauthorised maritime arrival when he was 18 years old (R1/226) and was detained in immigration detention on Christmas Island.
On 31 January 2002, he was granted a temporary Class XA-785 Protection visa (TPV) and was released from immigration detention. He was granted another TPV on 15 February 2006. On 9 March 2009, the Applicant applied for a Resolution of Status visa (RSV) and was granted an associated bridging visa XA-010 (BVA) (R1/226).
The Applicant committed his first traffic offence of “no motor drivers licence – under fines suspension” on 4 January 2003 and on 12 February 2003 the Perth Court of Petty Sessions imposed a fine of $300 and a driving disqualification (R2/102).
He committed five further driving offences between 13 September 2002 and 10 June 2005.
On 27 July 2005, the Joondalup Magistrates Court fined him $750 for the offence of “stealing”, which was the Applicant’s first criminal offence. Between 12 August 2006 and 16 October 2010, the Applicant committed 20 further criminal and driving offences.
On 11 November 2011, the Applicant was sentenced in the District Court of Western Australia to a total term of six years imprisonment from 5 November 2010 for the offences of “detained another with intent to gain a benefit” (Kidnapping offence), “demanding property by oral threats” (Extortion offence), and “assault occasioning bodily harm” (Bodily Harm offence) committed on 15 and 16 October 2010 (R2/100). These offences involved the Applicant and two co-offenders kidnapping and torturing the Applicant’s drug dealer whom the Applicant thought owed him money.
Consequently, on 5 October 2016, the Applicant’s BVA was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) on the basis that he did not pass the character test because he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (Cancellation Decision) (R1/10).
The Cancellation Decision resulted in the refusal of the RSV by operation of s 501F(2) of the Migration Act.
The Applicant requested revocation of the Cancellation Decision on 17 October 2016, but on 11 May 2017, a delegate of the Minister refused to revoke the Cancellation Decision (R1/10).
On 15 May 2017, the Applicant applied to the Tribunal for a review of the delegate’s decision. The application was heard by a differently constituted Tribunal and on 4 August 2017 that Tribunal affirmed the delegate’s decision (R1/8-29).
On 25 November 2020, the Applicant applied for a Class XE – Safe Haven Enterprise (Subclass 790) visa (SHEV), which is the subject of the current proceedings (R1/30).
However, on 19 May 2022, a delegate refused to grant the Applicant the SHEV under s 65 of the Migration Act. This is the Reviewable Decision that is currently before me (R1/224-256).
The delegate found that the Applicant did not meet the criterion in s 36(1C) of the Migration Act because there were reasonable grounds to believe he had been convicted by a final judgment of a particularly serious crime and was a danger to the Australian community. Similarly, the delegate also found that s 36(2C)(b) applied and that the Applicant did not satisfy the criterion in s 36(2) of the Migration Act (R1/224 and 256).
On 31 May 2022, the Applicant sought review of the Reviewable Decision in this Tribunal (R1/6).
ISSUES
The issues for determination are whether I consider, on reasonable grounds, that:
(a)the Applicant has been convicted by a “final judgment of a particularly serious crime”; and
(b)if so, whether he is a danger to the Australian community.
MATERIAL BEFORE THE TRIBUNAL
The application was heard on 9 February 2023, 15 March 2023 and 31 March 2023 by Microsoft Teams.
The Applicant was self-represented, and the Respondent was represented by Ms Tattersall of Sparke Helmore Lawyers. The Applicant was also assisted by an interpreter in the Kurdish Sorani language.
The Applicant gave evidence on 9 February 2023 and 15 March 2023. Y, whom the Applicant described as his fiancée, also gave evidence on 15 March 2023.
The Applicant fell asleep during Y’s evidence, and during Ms Tattersall’s closing submissions, on 15 March 2023. The Applicant was eager for the hearing to conclude on 15 March 2023 because he wanted a quicker result on his application. However, to afford procedural fairness to the Applicant, I ordered a copy of the 15 March 2023 transcript of proceedings, which was provided to the parties when it became available. The hearing then resumed on 31 March 2023. At that resumed hearing, the Applicant was taken through the relevant parts of the transcript concerning Y’s evidence and Ms Tattersall’s closing submissions that he may have missed when he fell asleep and was given the opportunity to comment and respond.
The following documents were admitted into evidence at the hearing:
(a)Psychological assessment report prepared by Mr Andrew Wong (Principal Clinical Psychologist, Andrew Wong Psychology) dated 17 October 2022 with cover sheet also dated 17 October 2022 (Exhibit A1);
(b)Curriculum vitae of Mr Wong (Exhibit A2);
(c)Undated support letter from Y (Exhibit A3);
(d)Section 37 T documents, labelled T1 to T25, comprising pages 1 to 256 (Exhibit R1);
(e)Tender Bundle, labelled 1 to 6, comprising pages 1-351 (Exhibit R2); and
(f)Section 37 Supplementary T documents, labelled ST1 to ST3, comprising pages 1-135 (Exhibit R3).
Prior to the hearing the Respondent lodged a Statement of Facts, Issues and Contentions (SFIC) dated 5 September 2022. The Applicant did not file any written submissions.
LEGISLATIVE FRAMEWORK
Decisions to grant or refuse a visa
Subsection 65(1) of the Migration Act provides:
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Criteria for protection visas
Subsection 36(1A) of the Migration Act provides that:
(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).
Further, s 36(1C) of the Migration Act provides:
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Further, s 36(2) of the Migration Act provides in part:
(2) 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; …
Subsection 36(2C)(b) of the Migration Act provides that a person is ineligible for the grant of a protection visa in certain circumstances:
(2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
…
(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.
Subsections 36(1C)(b) and 36(2C)(b) of the Migration Act are disentitling provisions. They create a criterion for a protection visa that the Applicant is not a person whom the Minister (and in this case the Tribunal) considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. A finding that an applicant is a danger to the Australian community will mean that they do not meet the criterion, and are ineligible, for a protection visa, even if (as is the case in this application) the applicant has been found to be owed protection obligations and that there is a real risk of the applicant suffering significant harm if returned to their country of origin.
Refugees Convention
Section 36(1C) was inserted into the Migration Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) to codify art 33(2) of the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol (Refugees Convention).
Article 33 of the Refugees Convention provides:
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 judgment of a particularly serious crime, constitutes a danger to the community of that country.
Particularly serious crime
Section 5M of the Migration Act defines a “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 Migration Act defines “serious Australian offence” as follows:
“serious Australian offence” means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
(Original emphasis.)
Refugee Law Guidelines
Further guidance for decision-makers can be found in the Refugee Law Guidelines: Procedural Instruction (Department of Home Affairs, reissued 27 November 2022) (Refugee Law Guidelines).
Paragraph 3.26.3 of the Refugee Law Guidelines provides guidance regarding the assessment of “danger to the community”:
The Australian courts have determined that the approach to the assessment of whether an applicant, having been convicted of a particularly serious crime, is a danger to the community has two distinct considerations:
1. whether, at some time in the past, the applicant has been convicted by a final judgment of a particularly serious crime (see 3.26.1 Convicted by a final judgment and 3.26.2 Particularly serious crime), and
2. whether the applicant is, at the time of the protection visa decision and into the future, a danger to the Australian community.
In other words, the conviction by a final judgment of a particularly serious crime alone is not sufficient to say that the applicant is a danger to the community. Nor is it sufficient to find that the applicant was once a danger. Rather, decision makers must determine whether the applicant is, at ‘present and for the indefinite future’, a danger to the Australian community.
Since the assessment of danger to the community is a consideration separate from the commission of a particularly serious crime, there is no ‘category’ of offending that will automatically result in a person being found to be a danger to the community. The assessment whether an individual is a danger to the community is one of ‘fact and degree’ to be ‘determined in the circumstances of a particular case.
In WKCG and Minister for Immigration and Citizenship (WKCG) [[2009] AATA 512], the Tribunal listed factors that assist in assessing whether a person is a danger to a member or members of the community:
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.
Those relevant considerations were described as pertinent by Logan J in DOB18 v Minister for Home Affairs [[2019] FCAFC 63].
In forming a view of the risk of recidivism, re-offending or relapse, decision makers can consider the factors listed in WKCG, such as mitigating and aggravating circumstances during commission of the offences and the totality of the applicant’s criminal record. As noted in Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs [[1977] AATA 35]:
... The rehabilitation of a migrant who has suffered a conviction is not only in his interests - it is in the interests of the community of which he is a member.
In the present case, the prospect of rehabilitation is the principal issue ...
...
Rehabilitation is never certain. One cannot predicate of an offender that he will not fall again, whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk ...
(Footnotes omitted.)
Case law
The meaning of “danger to the Australian community” in s 36(1C)(b) of the Migration Act, was discussed by Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG) and Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636 (DOB18).
Deputy President Tamberlin and Logan J have often been regarded by the Tribunal as having slightly different approaches to the interpretation of “danger to the Australian community”. However, the judgment of Collier J in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 514 (DMQ20), provided further clarification as to the interpretation of “danger” and found that their approaches were not inconsistent (at [46]).
I will briefly outline the dicta of Deputy President Tamberlin in WKCG and of Logan J in DOB18. I then outline Collier J’s judgment in DMQ20 and the Full Court’s judgment in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 (DMQ20 Full Court) which dismissed an appeal from Collier J’s judgment in DMQ20.
In WKCG, Deputy President Tamberlin articulated a broader assessment of “danger” in the context of s 36(1C)(b) of the Migration Act, at [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 [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’.
(Original underlining, my emphasis in bold.)
DOB18 was a decision of the Full Court of the Federal Court which involved the judicial review of an exercise of power under s 501BA of the Migration Act. Logan J, by way of obiter at [83], articulated a narrower interpretation of “danger” to Deputy President Tamberlin in s 36(1C) of the Migration Act:
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a ‘risk’, perhaps small. In my view, read in context, ‘danger’ in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about ‘danger’. In my view, it carries a narrower and more restrictive meaning that just ‘risk’.
(Emphasis added.)
On 16 October 2019, the High Court refused to grant special leave to appeal the decision in DOB18 v Minister for Home Affairs [2019] HCASL 331.
In LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17 (LKQD), Jackson J rejected a submission that “the danger referred to in s 36(1C) must be construed to mean a very serious danger”. His Honour agreed with Deputy President Tamberlin’s approach and stated, at [57]:
I agree with Deputy President Tamberlin where, in WKCG at [25], he observed that the words used in Art 33(2) are ‘plain and simple English’. By extension, so are the words of s 36(1C)(b). And the section does not say ‘very serious danger’. It just says ‘danger’.
And further, at [62], Jackson J explained in LKQD:
To the extent that Art 33(2) is an exception to the principle of refoulement, s 36(1C) can similarly be characterised as an exception to the principles of protection reflected in s 36(2). None of that requires any departure from the explanation of the ordinary meaning of s 36(1C) which Deputy President Tamberlin gave in WKCG. I note that Logan J, sitting on the Full Court, has recently held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’ and has suggested that may be inconsistent with WKCG: DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [83]. But even the standard suggested by his Honour does not rise to the level of ‘very serious danger’ urged on behalf of the applicant.
In contrast, in the Full Court decision of KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108, Bromberg J favoured the approach of Logan J for the following reasons (at [54]-[55]):
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) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]). Nor is any past criminality sufficient to engage s 36(1C)(b). To engage that subsection a person must have been convicted by a final judgment of a “particularly serious crime” (as defined by s 5M) and therefore be a “danger to the Australian community”.
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.
The Tribunal has previously found that it was not necessary to decide between the two interpretations because it was satisfied that an applicant was a danger to the community regardless of which approach was followed (TYXB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 9; SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1515).
Such an approach was upheld by Rofe J of the Federal Court in FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541 at [68]:
For present purposes, it is unnecessary for me to determine whether or not there is any real difference between the standards of “danger” expressed in WKCG, DOB18 and KDSP. The Tribunal’s reasons identify the standard of danger articulated by Bromberg J in KDSP, and noted that the considerations in WKCG provided a useful framework to assist the assessment. I see no error with that approach.
In DMQ20, Collier J, following the approach of Kerr J in EBD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 334 found that “danger” should be defined with reference to its “ordinary English” meaning.
Her Honour explained that WKCG and DOB18 were dicta that provided guidance as to the ordinary meaning of s 36(1C)(b) of the Migration Act. Her Honour stated, at [35]-[38]:
The applicant submitted that, to the extent that the Tribunal defined “danger to the community” by reference to the test articulated in WKCG rather than by Logan J in DOB18, the Tribunal erred as a matter of law.
Recently in EBD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 334, after having regard to WKCG and other authorities, Kerr J said:
28. 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.
In my view there is considerable force to the observations of Kerr J in respect of the concept of “danger to the Australian community” for the purposes of s 36 (1C)(b) of the Migration Act. As his Honour said, the language is that of ordinary English, has no technical meaning, and ought to be construed in its context.
Notwithstanding the detailed submissions of both Counsel in the present application, I respectfully note that relevant observations in WKCG and DOB18 were both dicta, could not be said to conclusively define the meaning of “danger to the Australian community” for the purposes of s 36(1C)(b), and in my view do no more than provide guidance in respect of the ordinary meaning of the words in that section.
(My emphasis.)
With respect to the meaning of “danger” in s 36(1C)(b) of the Migration Act, Her Honour stated at [39]-[46]:
Turning now to s 36(1C)(b), I note that “danger” is a term in common use. The Oxford English Dictionary defines it relevantly as:
Liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril
The Macquarie Dictionary similarly defines “danger” as:
noun 1. liability or exposure to harm or injury; risk; peril.
2. an instance or cause of peril.
Section 36 (1C)(b) of the Migration Act refers to danger “to the Australian community”. The section does not require there to be any specific level of danger to the Australian community from the visa applicant. The fact that s36(1C)(b) is referable to the visa applicant having been convicted by a final judgment of a particularly serious crime suggests however that, in order for s 36 (1C)(b) to be enlivened:
· there must be a real risk of exposure to harm in the Australian community from the visa applicant;
· the harm the Australian community would be exposed to by the visa applicant would be proportionate or referable to the “particularly serious crime” for which the visa applicant had been convicted; and
· the Minister must have reasonable grounds for forming that view.
As Tamberlin DP observed in WKCG at [25], the question whether a person constitutes a danger to the Australian community is one of fact and degree. This proposition is not in dispute. However at [31] it was further observed that 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.
Justice Logan in DOB18 at [83] opined that, read in context, “’danger’ in s 36 (1C)(b) means a risk that is present and serious”. His Honour continued:
83. …To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”
In the present case after referring to both WKCG and DOB18, the Tribunal at [64] found that in order for a person to be a “danger” there must exist, at the time of the decision of the Minister, a present risk which is “real” or “significant” or “serious”, and which is neither remote nor fanciful, that the person will cause harm of a sufficiently serious nature in the present or future.
…
I agree with the Tribunal’s articulation of principle at [64] in respect of whether the applicant was a “danger to the Australian community”. I do not consider it to be inconsistent with comments of Logan J in DOB18, rather I consider the Tribunal’s statement to be an accurate statement of the law. I do not consider that there is any material conflict between the legal principles as explained in WKCG and Logan J in DOB18. I am not satisfied that the Tribunal asked itself the wrong question in considering whether the applicant was a danger to the Australian community, as the applicant claims in ground 2.
(My emphasis.)
DMQ20 was discussed with approval in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055. Abraham J, at [57]-[59], accepted the ordinary English approach of Collier J, and provided a helpful explanation as to the scope of the “Australian community”:
In this context I note that WKCG was cited recently in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 514. At [37]- [38] Collier J observed that there is considerable force to the concept that “danger to the Australian community” for the purposes of s 36(1C)(b) is the use “of ordinary English, has no technical meaning, and ought to be construed in its context”. At [42], her Honour observed that “the question whether a person constitutes a danger to the Australian community is one of fact and degree”. Collier J referred to what was said to be a conflict between WKCG and the observations of Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 regarding assessment of the degree of risk. Her Honour observed at [46] that she considered there was no material conflict between the legal principles as explained in each. I note that the Tribunal in that case appeared to adopt the same approach, of which no complaint was taken. As illustrated by these cases (and others), although there has been debate as to the construction of s 36(1C)(b) and the passages in WKCG discussing it, that debate has been confined to assessing the degree of risk to the community.
DMQ20 reflects the two aspects of s 36(1C)(b), evident from the provision. As the applicant submitted, in order for s 36(1C)(b) to operate at all, the person must have been convicted by a final judgment of a particularly serious crime. It is only on the establishment of that premise that the second stage is engaged. That second stage is a limiting stage to determine whether the person is a danger to the Australian community.
I therefore do not accept that the phrase “the Australian community” in s 36(1C)(b), means that there must be a danger to “the whole of the Australian community” (and not less than, including a segment of the community), in the manner contended by the applicant. What constitutes a danger to the Australian community stands to be determined upon the facts and circumstances of individual cases. A person may pose a danger to the community by harming individuals within that community. The applicant has not established the premise underpinning this ground. It follows that the applicant has not established error by the Tribunal in its reference to the guidance in WKCG.
(My emphasis.)
DMQ20Full Court dismissed an appeal against Collier J’s judgment in DMQ20. In doing so, the Full Court provided further guidance and clarification as to the meaning of “danger” and the “Australian community” in the context of s 36(1C) of the Migration Act.
In DMQ20 Full Court, Rares J observed, at [49]:
The Parliament expressed the disqualifying thresholds in ss 36(1B) and (1C) differently, using, in s 36(1B), the concepts of “a risk to security” and, in s 36(1C), “a danger” to Australia’s security or to the Australian community. It follows that the Parliament intended that the words “a danger” in s 36(1C), as reflecting its treaty obligation under Art 33(2), to refer to something more than a mere risk that the person is a danger to Australia’s security or to the Australian community.
And further, at [51]-[54], Rares J observed:
The Oxford English Dictionary online defines “danger” as “liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk; peril” (sense 4a) and the Macquarie Dictionary online defines it as “liability or exposure to harm or injury; risk; peril” (sense 1) and “an instance or cause of peril” (sense 2).
A danger, in its natural and ordinary meaning as used in Art 33(2) and s 36(1C) (as understood by States Party to the Refugees Convention) conveys a threat of a substantial kind to Australia’s security or the Australian community based on objectively reasonable grounds (or suspicion): Suresh [2002] 1 SCR at 51-52 [90]-[91]; EN (Serbia) [2010] QB at 655 [45], 676 [114], 677 [118]; Zaoui [2006] 1 NZLR at 310 [45].
The concept of what is “a danger” involves an evaluation along a spectrum comprising, first, the probability or likelihood of the occurrence of an event or circumstance and, secondly, the consequence of its occurrence.
Thus, the word “danger” connotes that there are reasonable grounds to perceive a threat of serious, or potentially serious, consequences if the situation said to pose the danger were ignored. …
(My emphasis.)
In a separate joint judgment, Thomas and Snaden JJ, gave a detailed analysis of the concept of “danger”. For the sake of brevity, I have summarised some of their Honours’ analysis, but in totality it appears at [106]-[120].
Their Honours confirmed that the term should be given its ordinary meaning, at [106]:
Neither the Act nor the Refugees Convention defines what is or is not within the concept of “danger”. Insofar as concerns its incorporation within s 36(1C)(b) of the Act, then, “danger” is a term of everyday usage, which should be understood to carry its ordinary meaning.
Their Honours outlined the link between danger and harm:
“there exists a “danger” if there exists a sufficient risk, possibility or probability of sufficient harm” (at [110]);
“it is clear enough that the reference in s 36(1C)(b) of the Act to “danger” was intended to denote a prospect of harm” (at 111); and
““Danger” implies a prospect (howsoever measured) of injury (at the least), most likely of physical or psychological kinds” (at [111]).
Thomas and Snaden JJ further emphasised that decision-makers must engage in both a quantitative and qualitative analysis, at [113]:
When assessing the presence of danger (in the sense that the natural and ordinary meaning of that word imports), the required analysis is both quantitative (what is the level of probability that something might happen?) and qualitative (what are the consequences if it does?). …
Their Honours gave the following example concerning violent offending, at [116]:
In its human form, then, “danger” presupposes that there should be something about a person’s character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of routine interaction. Ordinarily, that would fall to be assessed by reference to the person’s prior conduct and the likelihood that it might be repeated. A person with no history of violent offending would ordinarily be thought not to pose any danger to others, no matter that he or she might possess some real capability to inflict harm. A person with an appetite for and history of violence, on the other hand, might well be thought otherwise.
Two propositions were advanced by Thomas and Snaden JJ following from their analysis of danger (at [118]-[120]):
First, it is likely not possible—and much less is it advisable to attempt—precisely to define what does and does not constitute “danger” for the purposes of s 36(1C)(b) of the Act. It is a concept without technical meaning that falls for consideration under the light of the whole of the relevant facts and circumstances that present in any given matter: Re WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434, 438 [25] (Tamberlin DP); LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17, 30 [57] (Jackson J). Perhaps like other indefinable concepts, one generally knows it when one sees it (to borrow from the famous observation of Mr Justice Stewart in Jacobellis v Ohio 378 US 184, 197 (1964); see also the observations of the Victorian Court of Appeal in R v Panozzo (2007) 178 A Crim R 323, 340 [43] (Chernov and Redlich JJA and King AJA)).
Second, whatever might be said of what does not fall within the conceptual limits of “danger”, it is clear beyond doubt that the circumstances with which the present matter engages fall well and truly within them. The Tribunal concluded that “…there exists a present risk which is real, significant and serious, which is neither remote nor fanciful[,] that the [appellant] will cause physical harm and perhaps severe physical harm, or extreme emotional harm[,] in the present or the future…” The present appeal (leaving to one side the proposed additional ground that the court declined to entertain) does not seek to challenge that finding. Rather, the contention is put simply that it does not bespeak a risk of harm that is sufficient to constitute the appellant as a “danger” in the sense that that term is employed in s 36(1C)(b) of the Act.
That proposition cannot be accepted. A finding that somebody poses a real, significant, serious and present risk of visiting physical harm very squarely suffices to establish that they constitute a “danger” for the purposes of s 36(1C)(b) of the Act. That is the way in which the Tribunal construed the statutory concept and doing so involved no misunderstanding of the kind about which the appellant complains. The learned primary judge was drawn so to conclude and, with respect, her Honour did not err.
CONVICTED BY A FINAL JUDGMENT OF A PARTICULARLY SERIOUS CRIME
The Respondent submitted that the Applicant has been convicted by a final judgment of several particularly serious crimes.
These included offences for which the Applicant was sentenced in the District Court of Western Australia on 11 November 2011, which were the:
(a)Kidnapping offence, which is punishable by a maximum of 20 years imprisonment under s 332 of the Criminal Code (WA) (Criminal Code).
(b)Bodily Harm offence which is punishable by a maximum of seven years if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, or in any other case imprisonment for five years under s 317 of the Criminal Code.
(c)Extortion offence pursuant to s 397(2) of the Criminal Code which is punishable by a maximum of 14 years imprisonment.
The Respondent also relied upon two other convictions for “assault occasioning bodily harm” on 15 May 2009 and 6 September 2007.
The Respondent submitted that the Kidnapping offence and the Extortion offence involved violence because they involved money being demanded from the victim using a threat to kill with the victim being held and assaulted over the course of eight and a half hours. However, kidnap and extortion involving threats to kill are not themselves offences which require an element of violence. In my view, the violence, which involved the victim being assaulted, was in fact part of the Bodily Harm offence.
It is on that basis (and on the basis that the Applicant has two other convictions for Bodily Harm offences) that I find that the Applicant has been convicted by a final judgment of a particularly serious crime.
Specifically, his Bodily Harm offences are “serious Australian offence[s]” under s 5M(a) of the Migration Act because “assault occasioning bodily harm” is an “offence [that] involves violence against a person” (definition of “serious Australian offence” para 5(1)(a)(i)) and which is punishable by a maximum term of imprisonment of not less than three years (definition of “serious Australian offence” para 5(1)(b)(iii) of the Migration Act).
Having found that the Applicant has been convicted by a final judgment of a particularly serious crime, the remaining issue is whether the Applicant is a danger to the Australian community.
WHETHER THE APPLICANT IS A DANGER TO THE AUSTRALIAN COMMUNITY
In WKCG at [26], Deputy President Tamberlin identified relevant factors to consider in assessing whether an Applicant is a “real or significant risk or possibility of harm to one or more members of the Australian community”. Those factors have not been disturbed by subsequent caselaw.
The relevant passage from WKCG in which the learned Deputy President set out these factors, and further guidance from the caselaw, was summarised at paragraph [34] above in the excerpt from paragraph 3.26.3 of the Refugee Guidelines.
Some of the factors are similar and overlap and so I have therefore considered them together under three headings.
Criminal record as a whole, extent of the criminal history, period over which prior crimes took place, seriousness and nature of the crimes, aggravating circumstances
The following table sets out the Applicant’s criminal history in Australia. It shows that over approximately five years, between approximately July 2005 and October 2010, he committed 17 criminal offences:
Court Result date Offence Offence date Result Joondalup Magistrates Court 27 July 2005 Stealing Not provided $750 fine Perth Magistrates Court 6 September 2007 Assault occasioning bodily harm (victim over 60 years) 12 August 2006 Community based order: 9 months
Community work: 50 hours
Perth Magistrates Court 29 May 2008 Breach of CBO (order of 6.9.07) Not provided Community based order: order extended by 6 months to 6 December 2008 Joondalup Magistrates Court 15 May 2009 Common assault 30 October 2008 Community based order: 12 months (supervision)
Community work: 60 hours
Perth Magistrates Court 15 May 2009 Breach of CBO (order of 29.05.08) Not provided Community based order: 12 months (supervision)
$200 for breach
Joondalup Magistrates Court 15 May 2009 Assault occasioning bodily harm 30 October 2008 Suspended imprisonment order: 8 months imprisonment concurrent suspended for 12 months Perth Magistrates Court 25 May 2010 Being armed or pretending to be armed in a way that may cause fear 18 May 2009 $500 fine District Court of Western Australia 11 November 2011 Detained another with intent to gain a benefit 15 October 2010 Imprisonment: 4 years
(Total: 6 years imp from 5 November 2010)
District Court of Western Australia 11 November 2011 Demanding property by oral threats 16 October 2010 Imprisonment: 1 year cumulative District Court of Western Australia 11 November 2011 Assault occasioning bodily harm 15 October 2010 Imprisonment: 1 year cumulative Perth Magistrates Court 14 November 2011 Possess a prohibited drug (methylamphetamine) 16 October 2010 $300 fine Perth Magistrates Court 14 November 2011 Possess a smoking utensil used for smoking prohibited drug 16 October 2010 $200 fine Perth Magistrates Court 14 November 2011 Possess a prohibited drug (cannabis) 16 October 2010 $250 fine Perth Magistrates Court 24 January 2012 Assault person performing a public function 12 May 2010 Imprisonment: 6 months concurrent from 24 January 2012 Perth Magistrates Court 3 February 2012 Possessing stolen or unlawfully obtained property 30 June 2010 $800 fine Perth Magistrates Court 2 March 2012 Possess a prohibited drug (amphetamine) 30 September 2010 $300 fine Perth Magistrates Court 2 March 2012 Disorderly behaviour in a police station 30 September 2010 $500 fine
Between September 2002 and February 2011, being an eight-year period, the Applicant committed 10 driving and other traffic offences under the Road Traffic Act 1974 (WA). They are shown in the following table:
Court Result date Offence Offence Date Result Perth Court of Petty Sessions 12 February 2003 No motor drivers licence – under fines suspension 4 January 2003 $300 fine
Disqualification hold/obtain MDL 3 months mandatory
Perth Court of Petty Sessions 27 February 2003 Reckless driving 13 September 2002 $300 fine
Disqualification hold/obtain MDL 6 months concurrent
Perth Court of Petty Sessions 27 February 2003 No motor drivers licence – under fines suspension 13 September 2002 $300 fine
Disqualification hold/obtain MDL 6 months mandatory
Perth Magistrates Court 10 June 2005 No motor drivers licence – under fines suspension 26 May 2005 $400 fine
Disqualification hold/obtain MDL 3 months mandatory
Perth Magistrates Court 16 June 2005 Refuse to supply or provide false name and address 10 June 2005 $100 fine
Disqualification hold/obtain MDL 3 months mandatory
Perth Magistrates Court 16 June 2005 No motor drivers licence – under fines suspension 10 June 2005 $350 fine
Disqualification hold/obtain MDL 3 months mandatory
Perth Magistrates Court 4 January 2007 Wilfully mislead police 30 December 2006 $400 fine
Disqualification hold/obtain MDL 3 months mandatory
Perth Magistrates Court 4 January 2007 Causing excessive noise created under new hoon law legislation 30 December 2006 $600 fine
(Hoon Law) Disqualification hold/obtain MDL 18 months concurrent
Perth Magistrates Court 4 January 2007 No motor drivers licence – under fines suspension 30 December 2006 $1000 fine
Disqualification hold/obtain MDL 9 months cumulative
Fremantle Magistrates Court 2 February 2011 Driving with prescribed illicit drug 20 August 2010 $150 fine
In addition to the offences shown in the above table, “Details of cases registered” for the Applicant with the Fines Enforcement Registry show approximately 18 further traffic violations including travelling on public transport without a valid ticket, speeding, using a mobile phone whilst driving, failing to return number plates after his licence was cancelled and stopping a vehicle in a zone where it was not permitted to stop (R2/20-22).
The Applicant arrived in Australia on 4 August 2001 and was detained in immigration detention. He was released from immigration detention on 31 January 2002 when his TPV was granted. He committed his first driving offence on 13 September 2002, approximately 13 months after his arrival, and approximately eight months after his release into the Australian community. He was convicted of his first criminal offence of “stealing” on 27 July 2005, approximately four years after his arrival in Australia.
The Applicant’s criminal offending is varied in nature. It can be generally characterised as drug possession offences, violent offences (including the Bodily Harm offence), dishonesty offences, breaches of court-imposed orders, the Kidnapping offence, Extortion offence and an offence for being armed in public. Although his criminal history has violent offences committed in 2006 and 2008, as well as in 2010, there appears to be a slight trend of increasing seriousness in the Applicant’s offending, with the course of offending conduct comprising his Kidnapping, Extortion and Bodily Harm offences being his most serious.
His driving and traffic offences are varied, and include reckless driving, driving under the influence of drugs, misleading or providing false details to police, causing excessive noise and five offences for driving without a licence. There does not appear to be an overall trend of increasing seriousness, although the Applicant’s frequent breach of road traffic laws, and his repeatedly driving without a licence is indicative of a disregard for Australian laws and the safety of other road users as well as showing that fines and disqualifications did little to deter him from repeat offending.
I will now outline some of the Applicant’s offending in more detail.
The Kidnapping offence, Extortion offence and Bodily Harm offence were committed on 15 and 16 October 2010. The Applicant and his co-offenders pled not guilty but were found guilty after an eight-day trial (R1/99). According to the sentencing Judge, the victim was a drug dealer who was in possession of a replica firearm he wished to sell. The Applicant attended his residence with another person to purchase the firearm and became upset when he realised it was a replica. Shortly after this, the Applicant, who was with another person, spoke to the victim in a motor vehicle outside his residence, pointed the firearm at the victim and struck him with the gun. The Applicant told the victim that the other person’s debt of $5000 was now the victim’s debt and that the victim had until the following day to repay the debt or be killed.
Approximately one week after the creation of the debt, the Applicant, two co-offenders (Co-offender C and Co-offender S) and the victim travelled to Co-offender S’s residence. The Applicant struck the victim with a flashlight and questioned him as to how he was going to get the money and why he had not paid it. The victim telephoned a friend and arranged for $1000 to be paid, which was to be collected by Co-offender C at a train station, who returned and told the Applicant he had collected the money (R1/100-101).
The sentencing Judge continued to outline that in the following weeks, the victim obtained money from his parents, his girlfriend and from selling amphetamines to repay the debt. The Applicant made further oral demands for money from the victim, telling him that he owed money for interest on late payments. Then on 15 October 2010, the victim was collected from his residence and driven to Co-offender S’s residence where the Applicant and Co-offender S were present. It was here that the Applicant and his co-offenders tied up and assaulted the victim (R1/101-103):
After [the victim] entered the house [Co-offender S] assaulted him by punching [the victim] in the head region on at least three occasions, putting gaffer tape over his mouth and around his head, shaving his head with the scissors and a shaver, and using a metal gaff hook to strike and tear at his jeans. He was also struck in the side of his face after being forced to put a pipe into his mouth.
[The Applicant] used a knife to stab and tear at the jeans. [Co-offender S] then punched the victim in the head and upper body while he was being held by [the Applicant] and appeared to attempt to insert a syringe in the neck and arm of the victim.
[Co-offender S] then cut his own chest with the knife, then rubbing blood on his own fingers made a roaring sound and then used the knife on [the victim] to cut his arm and chest. …
[Co-offender S] rubbed salt and pepper on the wounds and eyes and sprayed aerosol into the face and mouth of [the victim]. [The Applicant] was present while [Co-offender S] carried out those activities. [The victim] was taken outside. [Co-offender S] threatened to throw him in a snake pit and then took him into a shed where he obtained a cable and told him that he would be strung up with it, and then struck him with it.
[The victim] was taken back inside the house. Shortly after, [the victim] left the premises in a car with [the Applicant] and another. [Co-offender S] remained at the house. Shortly after, that vehicle picked up [Co-offender C]. The vehicle then travelled to the residence where [the victim] had spent the previous night. [Co-offender C] told [the victim] to go inside and get his phone and not to cause any trouble whilst doing so.
[The victim] accompanied [Co-offender C] and did this. Whilst in the house he asked [Co-offender C] permission to change his shirt. [Co-offender C] instructed him to do so quickly. …
[Co-offender C] and [the victim] then returned to the vehicle where [the Applicant] and another were, and the vehicle proceeded to drop the other person off and then returned to [the street where Co-offender S and the residence was]. Upon returning … the ordeal continued, with [the Applicant], [Co-offender S] and [Co-offender C] striking [the victim] with fists and a wooden truncheon and instructing him to make calls to get the money or he’d been [sic] killed.
Whilst making those calls [the victim] was urinated on by [Co-offender S], while [the Applicant] and [Co-offender C] laughed. [Co-offender S] then used a hammer to tap on several occasions what had been described as railway spikes into the skull of [the victim] in the presence of [Co-offender C] and [the Applicant]. This caused pain to [the victim].
I accept that on one occasion you, [the Applicant], stopped [Co-offender S] from delivering what appeared to be a more forcible strike of the hammer onto the railway spikes which was held against the recently shaved head of [the victim]. Shortly after striking [the victim’s] head with the railway spikes, [Co-offender S] left the house and had no more to do with a subsequent offence. …
… after [Co-offender S] left, … [the Applicant] fell asleep.
After the Applicant fell asleep, Co-offender C told the victim that he would lose a finger unless he paid $2000 by midnight, producing an axe, and grinding it over the victim’s fingers, as well as hammering another railway spike under the victim’s fingernails. The victim contacted his family who withdrew $2000 to help him. The sentencing Judge continued (R1/103):
[The Applicant] then woke up and told [the victim] he had to help move his apartment. [The Applicant], [Co-offender C] and [the victim] then left in the motor vehicle, went to the … apartment of [the Applicant]. [The victim] was told to get into the shower and clean himself up.
[Co-offender C] and [the Applicant] used [an] electric razor on the hair of [the victim] and … [the Applicant] used a hairdryer to not only blow away the hair but to press it against [the victim’s] scalp. [The victim] was then given a new shirt to put on and instructed to sweep the floor and put the hair clippings into a bag.
He was then told to get back into the car, driven to Northbridge with [the Applicant] and [Co-offender C]. The vehicle stopped at a kebab shop where [the Applicant] obtained some food, some of which was given to [the victim]. The vehicle was driven back to the apartments. [The victim] was told to wait in the back of the vehicle then told to go upstairs. [The Applicant] and [Co-offender C] then drove to Northbridge when they were apprehended.
Now, I accept that [the victim] was overwhelmed by the assaults on the evening and the continued presence of at least two of the perpetrators and simply did as he was told. [The victim] went upstairs, sat on a couch and it appears was watching TV in the company of two females.
He said that he was in shock and he blanked out while and, in due course, the TRG [tactical response unit] entered the unit. Shortly after this, [the victim] was taken to the police station and photographs of the injuries which were tendered in the trial were taken.
The sentencing Judge further commented that the assaults and deprivation of liberty were designed to intimidate the victim so that money could be obtained (R1/104).
The sentencing Judge commented on the role of the Applicant and his co-offenders (R1/104-105):
… insofar as [the Applicant’s] role is concerned, it was the more dominant. He created the oral demands, leading the creation of the debt and followed through with verbal reminders and physical force. He was present at the commencement of the kidnapping until its conclusion, the time, on my calculations, of around about eight and a half hours. He and another took [the victim] to [Co-offender S’s] residence on the 15th and later collected [Co-offender C].
As to the assaults, I accept that [Co-offender S] was more physically active and violent, however, [Co-offender S’s] activities were clearly part of a joint criminal enterprise. [The Applicant] used the knife on the jeans of [the victim] and later held him while [Co-offender S] punched him in the neck and struck [the victim] with a wooden truncheon. He also photographed part of [the victim’s] ordeal and was present in aiding and encouraging.
It is, insofar as [the Applicant] is concerned, in my opinion, mitigatory that he at least stopped what appeared to be a more forceful blow being delivered by [Co-offender S] to the spike held against the scalp of [the victim]. It seems to me that [Co-offender S’s] role in the kidnapping is slightly less than that of [the Applicant].
The facts of these offences (the Kidnapping offence, Extortion offence and the Bodily Harm offence) which involved the victim being detained, threatened, and assaulted over an eight-and-a-half-hour period are indicative of the serious nature of this offending.
As the above table shows, on 6 September 2007, the Applicant was convicted of “assault occasioning bodily harm (victim over 60 years)” which occurred on 12 August 2006. The victim was a 68-year-old man who was trying to park his car in his carport where the Applicant and a group of males were. They had refused to move when asked by the victim. The victim was slowly moving his car into the carport when the Applicant opened the driver’s side door and punched the victim in the face with his clenched fist (R1/12). This was an unprovoked attack which was further aggravated by the victim being elderly and should therefore be regarded as serious.
The Applicant has also been convicted of two assaults on public officers:
(a)His 15 May 2009 convictions for “assault occasioning bodily harm” and “common assault” were offences against two Centrelink officers who were escorting the Applicant from the premises after he had been asked to leave having become frustrated and angry about the result of his Centrelink claim. He kicked a Centrelink officer in the groin which caused pain and discomfort and aggravated an existing injury that required surgery. He then spat in the face of one officer who came to the first officer’s assistance. At the time of these offences the Applicant was subject to a community-based order (R1/12; R2/12-14).
(b)His 24 January 2012 conviction for the offence of “assault person performing a public function” was committed on 12 May 2010. This offence involved the Applicant verbally abusing and spitting on a parking enforcement officer. He was identified by a DNA swab.
I find that the nature of these offences, assaulting public officers in the performance of their duties, is indicative of their seriousness.
The “being armed or pretending to be armed in a way that may cause fear” offence of 18 May 2009 involved the Applicant having a conversation with the victim who worked in a fish and chip shop and was an associate of the Applicant’s. The victim told the Applicant that “he was getting fat and that he should look after himself better”. The next day the victim heard that the Applicant was unhappy with those comments and phoned him to apologise but the Applicant responded with abusive language. Later that day the Applicant attended the victim’s workplace, walked up to the victim, and said, “fuck you, I will kill you”. The Applicant reached into his right pocket and partially pulled out what appeared to be a metallic gun. The victim reported the matter to police that evening. When doing so, the victim received a phone call saying that the Applicant was at his house looking for him. Police attended the house and saw the Applicant in the company of others. When police searched the Applicant’s vehicle, they found a replica gun under the driver’s seat (R2/126).
As the tables above show, the Applicant has received a range of penalties for his offending. He received fines and community-based orders for many of his criminal offences which suggests the Court regarded these offences to be less serious in nature. He received a community-based order for his first violent offence, the “assault occasioning bodily harm (victim over 60 years)” offence where he punched the 68-year-old man. A community-based order may have been imposed because at that point the Applicant only had one prior criminal offence for “stealing”. The facts of that offence, which as I have said above, involved an unprovoked assault against a 68-year-old victim, nevertheless suggest this offence was serious, despite the community-based order imposed. The Applicant also received a community-based order for his second “common assault offence” on 30 October 2008 against the Centrelink officer but was also sentenced to a suspended term of imprisonment of eight months for the “assault occasioning bodily harm” offence against the other Centrelink officer, which suggests an escalation in seriousness. Despite the Applicant not being sentenced to a custodial term of imprisonment, as I explained above, assaulting public officers in the performance of their duties is serious. The sentencing Magistrate commented, with reference to the “assault occasioning bodily harm” offence, that the offence was “of such severity that only a term of imprisonment is justified” (R2/15). With respect to the “common assault” offence, the sentencing Magistrate stated, “this is a gross act of spitting upon someone who, …was conducting their normal duties” (R2/16).
The Applicant then received a substantial term of imprisonment totalling six years imprisonment for the Kidnapping (four years), Extortion (one year cumulative) and Bodily Harm offences (one year cumulative) committed on 15 and 16 October 2010. The length of these sentences of imprisonment, including that cumulative rather than concurrent terms were imposed, are indicative that the Court regarded these offences to be very serious.
The Applicant was also sentenced to a term of six months imprisonment for assaulting the parking officer, being the offence of “assault person performing a public function” committed on 12 May 2010 which is also indicative that the Court regarded that offence to be serious, particularly when this was the second occasion when an assault against a public officer had occurred. Again, as I stated above, assaulting public officers in the performance of their duties should be regarded as serious.
As the Applicant’s driving offences table shows, his driving and traffic offences were dealt with by way of fines and driving disqualifications and not prison terms, which suggests they were less serious. I note that the Applicant received a large fine of $1000 and a longer driving disqualification for his fifth offence of driving without a licence, which is indicative that the Court regarded this offending as being more serious, most likely because of its repeated nature.
In addition to the sentences and penalties imposed by the Courts, the nature of the harm that could result from the types of offences committed by the Applicant is helpful to consider in assessing their seriousness.
Offences involving violence are by their nature very serious because as well as resulting in physical injuries, they can result in loss of life and psychological harms. Similarly, offences involving deprivation of liberty such as the Kidnapping offence as well as the Extortion offence, which involved threats to kill the victim unless he handed over money, could foreseeably result in psychological harm to victims. This is evident from the victim impact statement of the victim of these offences, which was described by the sentencing Judge as follows (R1/104):
I’ve read the victim impact statement of [the victim]. It refers to paranoia, anxiety, fear for his own safety, crippling panic attacks, scarring on the chest, the requirement for constant counselling, difficulties with sleep, ongoing costs of medical, pharmaceutical and counselling expenses. All of those, of course, are a natural reaction to the ordeal undergone by [the victim].
Being in possession of weapons in a public place is not as serious as a violent offence, however, it is still relatively serious because there is the potential for those weapons to be used and for members of the community to be threatened, injured, or killed.
The nature of the harm if the Applicant were to commit further drug offences is varied, however, they are generally, less serious than violent offences. Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
Offences such as stealing and possessing stolen property can cause financial harms in the form of increased costs to the community including increased insurance premiums and psychological distress to victims, but they are far less serious than violent offences.
There are also some aggravating circumstances with respect to some of the Applicant’s offences. As I noted above, the Kidnapping, Extortion and Bodily Harm offences of 15 and 16 October 2010 were committed with two co-offenders over a period of many hours (eight and a half hours). These, in my view, are aggravating circumstances. So too is the age of the victim (a 68-year-old man) of the “assault occasioning bodily harm (victim over 60 years)” offence and the unprovoked nature of the offence. The fact that the Applicant assaulted public officers performing their duty, including by hitting and spitting at them, is also, in my view, an aggravating circumstance that confirms the seriousness of that offending.
Overall, I find that the totality of the Applicant’s offending, which includes violent offences, can be characterised as serious. The Applicant has reoffended with violent offences despite being given the opportunity of community-based orders and a suspended sentence. The unprovoked nature of the offending and the range of his victims is concerning. The evidence suggests that the Applicant has a disregard for persons in authority, a disregard for Australian laws (including road traffic laws) and that he reacts with unprovoked violence when he is frustrated or inconvenienced.
Mitigating circumstances
The Applicant has suffered trauma before his arrival in Australia. The Applicant’s evidence was that he eloped with his girlfriend whose family did not approve of him and would not allow them to marry. This was because his girlfriend’s family belonged to a fundamentalist Islamic group and his family was not part of that group. After they eloped, her family convinced them to return on the promise that they could marry. However, his girlfriend was killed by her brothers when she was found not to be a virgin. The Applicant went into hiding and was assaulted by a group of men whom he assumed were his girlfriend’s family members, suffering stab wounds which required hospitalisation. After the assault, his mother convinced him to flee Iraq. The Applicant’s brother also died in suspicious circumstances. The Applicant described this as a painful experience and that he felt partly responsible because he thought his girlfriend’s family may have been responsible for his death (R1/113; R1/116-118; R1/123, para [13]-[14]; A1/4, para [18]-[19]).
Clinical Psychologist Mr Wong assessed the Applicant in October 2022 and wrote a report dated 17 October 2022 (A1). Mr Wong stated that the Applicant’s:
Anxiety-Related Disorders scale was moderately elevated, particularly his Traumatic Stress subscale. His Depression scale was significantly elevated, especially on the Psychological subscale. He endorsed that he experienced the vegetative symptoms of depression, such as sleep disturbances, low energy and low motivation, although his Cognitive and Affective subscales were moderately elevated, which according to his Impression Management scores, consistently indicated his poor insight. His Paranoia scale was elevated, especially his Persecution subscales, which suggested he readily believed that he was treated unfairly or inequitably…
Mr Wong concluded that, based on the information before him, the Applicant presented with symptoms consistent with his having “Posttraumatic stress disorder” (PTSD) and “Stimulant use disorder (methamphetamine) in sustained remission in controlled environment” (A1/10, para [47]) (Stimulant Use Disorder). As was observed by Mr Wong, the Applicant has not engaged in any individual therapy for his mental health issues and “still had not adequately received psychological intervention for his mental health issues” (A1/6, para [30]; 10, para [49]).
On 11 November 2011, the sentencing Judge accepted that the Applicant suffered from depression and anxiety that he had become a “heavy user” of amphetamines. The sentencing Judge accepted “that there is a nexus between your depression anxiety and stress, which naturally leads to involvement with drugs and the commission of the offence” (R1/106-107).
The Applicant’s evidence at the hearing of this application was, in summary, that he was drunk or on drugs at the time he committed his offences.
I accept Mr Wong’s assessment that the Applicant suffers from PTSD and Stimulant Use Disorder, which is consistent with the other evidence before me.
The Applicant’s mental health issues (including his prior Stimulant Use Disorder), are on the one hand, mitigating in terms of his criminal responsibility but they are of concern with respect to his risk of re-offending, particularly given that the Applicant has not undertaken any counselling or other psychological treatment programs to address his mental health or past trauma.
Prospects of rehabilitation, risk of re-offending and recidivism and the likelihood of relapsing into crime
When sentencing the Applicant on 11 November 2011, the sentencing Judge considered the motivation for the Applicant’s offending (including mental health issues and drug use), as well as the likely risk of the Applicant reoffending.
His Honour had reference to a pre-sentence and psychological report, but stated they were of limited assistance. This was because, according to the sentencing Judge, the psychologist had found the Applicant difficult to assess because he was reportedly superficial, vague and gave inconsistent information. The sentencing Judge did, however, accept that the Applicant suffered from depression and that he was a heavy amphetamine user. The sentencing Judge also said of the Applicant’s motivation for the offending (R1/106-107):
It’s also referred to in the reports that you suffer from depression anxiety, and appear to have been motivated to be involved in this offence for financial gain, intimidation, humiliation of another and because there is likely to have been a loss of face suffered by you in relation to the incident involving the replica pistol.
As I noted in the previous section, the sentencing Judge noted there was a nexus between the Applicant’s depression, anxiety and stress, his drug use and offending (R1/107).
It was unclear whether the sentencing Judge was referring to the pre-sentence or psychological report, however, His Honour relevantly observed (R1/107):
It refers to you having a high risk of re-offending, but also says that caution must be used in these sort of assessments because of your cultural background. But it’s said that your past behaviour puts you at a high risk of re-offending.
Clinical Psychologist Mr Wong also found the Applicant difficult to assess. Mr Wong administered the Personality Assessment Inventory (PAI) and observed (A1/8, para [39]):
The Positive Impression Management scale was markedly elevated, indicating that he was attempting to portray himself in an extremely positive light or underreporting his mental health conditions. The Negative Impression Management scale was also moderately elevated, suggesting that [the Applicant] was attempting to exaggerate negative psychiatric symptoms or personality features. Further examination into the Impression Management Configural Analysis, suggested that he was non-effortfully distorting his responses. This responding style indicated that he lacked insight into his mental health and/or was highly distressed while responding, which could have affected the proper concentration in the assessment tool. Such irregular responding style, where he had both minimised some responses and exaggerated others rendered the validity of the clinical scales questionable and therefore extreme caution was required when interpreting other scales on the PAI.
Using the Historical, Clinical Risk Management-20 (HCR-20), Mr Wong assessed the Applicant as being a low or medium risk of violent reoffending. Specifically (A1/9, paras [42]-[43]):
… Based on the available information, [the Applicant] scored within the Low-Moderate range of violent re-offending.
Specifically, his risk of serious physical harm1 fell in the Low range, whereas his risk of imminent violence2 and general risk of future violence/ case prioritisation3 fell in the moderate ranges. This result suggested that although it appeared unlikely that he would seriously harm another person in the future, it was likely that he would re-engage with violent or aggressive behaviours when under stress or pressure. This profile indicated that he required specialised psychological treatment and/or monitoring to manage his violent re-offending.
1. Risk for Serious Physical Harm reflects the severity of violence the individual might commit. This facet of risk is important in decisions, such as the frequency of treatment sessions or reporting obligations to community corrections.
2. Risk for Imminent Violence indicates the imminence of the violence the person might commit (in the coming hours to days, or days to weeks). This facet of risk is important in making decisions about imminent safety of the public, a class or people, or particular individuals.
3. Risk of Future Violence is a case prioritisation measure for intervention in custody and in the community. This measure should be considered in situations where management resources are limited. An individual who scored in the Moderate range indicates that they need some special management strategies, such as mental health treatment, drug and alcohol treatment, or monitoring.
(Emphasis in original.)
Mr Wong also made recommendations at the end of his report (A1/11, para [54]). It is unclear whether those recommendations qualified Mr Wong’s assessment of risk. That is, whether the recommendations were necessary to maintain a low-moderate risk or whether they would further reduce that risk if implemented. The recommendations were that the Applicant would benefit from:
· Being involved in community groups or networks to build prosocial peers.
· Engage in residential rehabilitative services to receive specialised treatment for his drug abuse, which appeared to be managed predominantly because of his incarceration and detention.
· Engage with a clinical or forensic psychologist for ongoing therapy to manage his trauma and continue to review the skills learnt in his therapeutic group programs. Motivational interviewing and coping strategies should be prioritised in treatment.
· Engage a nutritionist to manage his obesity.
There is no evidence that the Applicant intends to engage in any of these recommendations, or in any other form of rehabilitation or therapy, in the community. Indeed, Mr Wong opined that that the Applicant lacked insight into his mental health. Additionally, the Applicant has not engaged in any psychological treatment for trauma or to address his other mental health issues. This is a concern because, according to the sentencing Judge whose observations I accept, the Applicant’s mental health and drug use have contributed to his offending.
A period of parole supervision will often provide for treatment and counselling in the community. The Applicant’s evidence was that he denied his own parole because of concerns about his visa and so he could complete the Pathways program (transcript/74), which is a program addressing addiction and offending. In September 2014 the Prisoners Review Board made an order to deny the Applicant’s parole with the comment that it was at the Applicant’s request (R2/213). In any event, the Applicant’s parole period expired in November 2016 and so he will not have the opportunity of being supervised in the community on parole which can assist with rehabilitation and reintegration through targeted programs and supervision.
The Applicant’s plan is to make a life with Y, who he referred to as his fiancée, to help look after Y and to be a family with her two children and grandchild. He may start a business because the Applicant has skills and work experience as a baker (transcript/13-15). These skills may assist the Applicant to find employment and to make meaningful use of his time which could in turn reduce the likelihood of his reoffending. I also note that in May 2011, the Applicant participated in a workshop, “Boom or Bust”, described as a “workshop which reviewed employers’ expectations, employability skills and offered support strategies for future pathways to success in the mining and industrial sectors” (R1/76).
Having a family life may also be protective. The Applicant’s evidence was that Y was ready to support him whenever he needed help (transcript/13). Y and her family appear to be the Applicant’s only connection to, and support in the Australian community. The only other references that indicate support for the Applicant are from other detainees (R1/210-211). I also note a support letter dated 15 July 2017 from Y’s adult daughter, N, in support of the Applicant staying in Australia (R1/86). However, given Mr Wong’s recommendations for structured support in the community, including residential drug rehabilitation, I am of the view that Y’s support (even if she is assisted by N and other family members) is not likely to be sufficiently protective. Also, although Y’s evidence at the hearing was that the Applicant was like family to her, and that she would provide him with support if he was released into the Australian community, they appear to have an “on again, off again” relationship and she has withdrawn her support for the Applicant in the past (transcript/87). This raises further doubts as to how protective her relationship with the Applicant is likely to be.
The Respondent submitted that Mr Wong’s assessment (of the Applicant being a low-moderate risk of reoffending) should be regarded with some caution because the list of materials relied upon in his report that he considered indicates that he did not have all the relevant information that is currently before the Tribunal. This included the Section 37 Supplementary T documents (R3) which contains numerous immigration detention incident reports, and the Tender Bundle (R2) which contains documents from the Courts, corrective services, and the police.
I agree that Mr Wong did not appear, from his list of documents relied upon, to have had access to all the material currently before me, but I do note he referred to incidents in immigration detention including the Applicant being involved in eight counts of minor assault, seven counts of minor disturbance and five counts of unplanned use of force and aggressive or abusive behaviour towards staff and other detainees, and that the Applicant had been involved in insulting/ threatening language, fighting and assault whilst in jail (A1/7, para [34]). That was despite not listing those records as documents he relied upon in writing his report. I think it is therefore likely that Mr Wong made an accurate assessment at the time of writing his report.
However, one reservation that I have is that Mr Wong listed the Applicant’s offences in the categories of violent and non-violent offences but did not elaborate on the facts of those offences. I am therefore uncertain as to what his specific understanding of the Applicant’s offending conduct was. However, even if I accept that Mr Wong was appraised of the specific facts and circumstances of the Applicant’s offending, the Applicant’s evidence at the hearing of this application suggests that the risk or likelihood of the Applicant reoffending in a violent manner is slightly higher than Mr Wong’s assessment. That evidence includes the Applicant minimising his offending, blaming others for his offending, blaming his offending on drugs and alcohol, and blaming immigration detention officers for incidents where he was abusive and aggressive in immigration detention.
Before I turn to this evidence, the Applicant has attended or completed several compulsory treatment programs he was assessed as requiring in prison. These included the:
(a)Cognitive Brief Intervention program from 28 January 2010 to 9 February 2010 (R2/258). He was enrolled in this program again, which was scheduled from 15 April 2011 to 21 April 2011 but only attended two out of eight sessions (five out of 20 program hours) and was terminated for non-attendance (R2/195-196). He completed the program again in December 2011. The completion certificate states that the course content included (R1/77):
· Self Control
· Critical Reasoning
· Problem Solving
· Interpersonal Perspective Taking and Relapse Prevention
(b)Think First Program completed in November 2012 where he participated in 27 of the 30 sessions in the program. The report states that the Applicant’s “level of understanding was acceptable” after completing the program (R2/197-200). The completion certificate states that the areas covered in the program included (R1/75):
Problem Solving
Decision Making
Social Skills
Self Management
(c)Violent Intensive Program high intensity, completed in October 2013 (R2/185, 227 and 231). The completion certificate states that the course content included (R1/74):
· Effective Decision Making
· Interpersonal skills
· Emotions and Anger Management
· Non Criminal Thinking
· Disinhibitors
· Perspective Taking
· Violent and Aggressive Behaviour Cycles
· Violence in Close Relationships
· Relapse Prevention
(d)Pathways high intensity. A parole review report dated 21 August 2014 stated that the Applicant was participating in this program but was removed from the program on 28 July 2014 due to non-compliance (R2/258) because he was regressed to maximum security after being found in possession of a pornographic DVD, medication not prescribed, mobile telephone, charger, and earpiece (R2/180). He subsequently completed the program in November 2015 (R1/73; R2/190). The completion certificate states that the three broad goals of the program were:
· Preventing a return to criminal thinking and offending behaviour
· Preventing a relapse into problematic substance use
· Providing clients with skills to assist them to live a meaningful and responsible life
The Applicant also attended 12 sessions of Narcotics Anonymous in prison as at 16 September 2015 (R1/72).
In a statement dated 23 February 2021, the Applicant said that he did not enrol in courses in detention because he was not aware of them (R1/191). In a statement dated 25 March 2021, the Applicant said that after becoming aware he could undertake courses in detention, he made enquiries about courses that would be suitable for him to enrol in and was waiting to hear back (R1/207-208). However, despite these enquiries, the Applicant has not undertaken any rehabilitative courses in immigration detention.
In his statement dated 24 November 2020, the Applicant claimed to be “deeply remorseful and regretful” about his offending and said that it “will not happen again”. He acknowledged that he “had a lot of problems in the past including drug and psychological issues, temper issues and a lack of self-awareness and worst of all I did not understand my issues or have anyone like a partner to support me”. He continued to state that he had learnt a lot from his participation in programs when he was in prison and how he should act differently and consider the consequences of his actions. The Applicant further stated that he had “helped people in detention and have good relationships with staff and detainees” and that “[w]hile in prison and detention I have respected the rules and I respect all the people who have been respectful towards me” and that he has “kept myself out of trouble” and “walk away from any drama” (R1/124-125).
However, despite these statements, the Applicant’s poor behaviour, which includes assaults, aggressive behaviour and possessing drugs and drug paraphernalia in prison and immigration detention calls into question any gains he may have made from these programs and raises doubts about the degree to which he is rehabilitated and the likelihood of his reoffending.
Between 2 March 2011 and 7 August 2015, the Applicant was found guilty of 14 prison incidents which included disobeying rules/ orders, insubordination or misconduct (including being in possession of articles not lawfully issued to him, such as possession of a pornographic DVD, mobile phone, charger and head phones), swearing/ indecent language towards prison officers, two assaults against other prisoners (on 11 May 2011 and 25 March 2013) and use/ possess illicit drugs (possessing Panadol osteo). Prison is a highly controlled environment and committing numerous adverse incidents in such an environment raises concerns about the Applicant’s ability to regulate his behaviour in the community. The Applicant did not take responsibility for his prison conduct at the hearing, avoided answering questions about it, and accused the Respondent’s legal representative of trying to “ruin” him (transcript/35-36). He also blamed prison officers (transcript/36):
You know those officers are so rude and they mistreat you, and they treat you unfairly, but at the end of the day, on the piece of paper, they write whatever they like, they are right. And this is the same story happened in prison. They wrote whatever they like, and they didn’t bring up those good things that I did, and I know what the intention is.
There was a period between adverse prison incidents on 26 March 2012 and 28 July 2014 where the Applicant did not have any prison charges (R2/174). An individual management plan dated 23 May 2013 stated that during the previous six months the Applicant incurred no convictions (R2/220). A subsequent plan dated 31 January 2014 recommended that he be reduced to minimum security but nevertheless stated that the Applicant “is a bully and shows no respect towards officers, he is often abusive, argumentative and demanding if things don’t go his way” (R2/223). I note that after the date of this report the Applicant was found guilty with respect to a further nine prison charges. I therefore do not think it could be concluded that the Applicant’s prison behaviour improved.
There are also numerous reports of violent and aggressive or abusive behaviour by the Applicant in immigration detention between 4 January 2017 and 18 June 2022 (R3/5 and 133). These incidents included the Applicant:
·Swearing at officers by calling one a “bitch” and the other a “black Somalian dog” (R3/5).
·Becoming aggressive and abusive towards medical staff when he was late to get his medication and stating, “I’m not fucking leaving here until I get my meds you fucking dog cunts” (R3/8).
·Lunging at and shouting profanities and racial insults at another detainee and persisting with the abuse for 20-30 seconds after an officer told him to stop, claiming that the officer had no authority over him and was disrespecting him (R3/16).
·Aggressively flipping a chair and abusing an officer who asked him to stop using a computer (R3/22).
·Becoming aggressive and abusive towards an officer, yelling “you fucking dogs” and “open my fucking door” before throwing a cup of sugar and walking away because he was given a cup containing 12-15 sugar satchels and wanted more. When the officer started walking to open the door, the Applicant stated, “you fucking dog” and “do your fucking job” (R3/127).
·Abusing an officer who would not issue him with a razor outside of razor exchange time, including stating “you all dogs cock sucker and mother fucker”, “you are all dogs, cock sucking dogs” and “I will call you a dog every day, you want to make enemies in here” (R3/111).
·Shouting and using abusive language in the lunch servery area because he was unhappy with the meal he was given. When asked to stop shouting the Applicant reportedly told the officer to “fuck off” and came approximately 50mm from the officer’s face. The officer backed away and asked the Applicant to stop abusing the staff. Another manager came to intervene. The Applicant called the original officer a “fucking dog”. The manager escorted the Applicant from the servery and told him he would lose 10 IAP points [Individual Allowance Points which detainees may earn to trade for personal care and incidental items]. When the Applicant eventually received his meal, he continued his abuse of the officer including stating, “10 points you fucking dog, fuck you dog. Look at you, you fucking cocksucker” (R3/108).
·Demanding more cups when an officer was handing them out and throwing his on the floor after he drank from it. The Applicant also attempted to take a roll of paper towels from the mess and when he was told he could not do so, he abused the officer, by stating, “you’re a fucking cock sucker” multiple times as well as “you’re a fucking paedophile” (R3/104).
·Pushing and shoving officers with other detainees to prevent the removal of another detainee (R3/95).
·Abusive and aggressive behaviour when he was being escorted to a processing centre and threatening to assault an officer. The Applicant wanted an officer to carry his bag and became upset when he was told he had to carry his own bag. The Applicant reportedly stated, “Fuck you, you fucking dog you work for me, now carry my bags”, and then stated, “I’ll bash you, you fucking dog” and raised his right hand and motioned to physically assault the officer. When the officer told the Applicant not to threaten him, the Applicant reportedly told the officer to “fuck off” (R3/90).
·Abusing an officer whom the Applicant wanted to get him an air conditioning remote controller. The Applicant had been told another detainee had the remote and that he should ask for it. The Applicant reportedly stated, “get off your fucking [sic] and do some work”. The officer politely said he would take the Applicant’s advice into consideration and the Applicant reportedly replied, “if you’re going to be a fucking smart arse then I’ll smash you”. The officer asked the Applicant to repeat what he had said, to which the Applicant replied, “stay out of my way or I’ll bash you”. This incident report, which was dated 27 December 2018, also states that the Applicant was currently being monitored on a Behaviour Management Plan (R3/88).
·Drug smoking paraphernalia being found hidden in a light fitting out the front of the Applicant’s room (R3/11).
·Abusing an officer who had stopped him at a door leading back to his compound. The officer stopped the Applicant and told him that he could not take two bananas back there. The Applicant reportedly told the officer to “fuck off and just open the fucken gate”. When it was explained he was only allowed one banana, the Applicant reportedly stated, “I do what I fucken want ya dog”, and started to yell and become agitated, telling the officer that he would “shove the banana up his arse and slap him if he did not open the gate” (R3/79).
·Abusing an officer who did not give him permission to attend the property department to retrieve items left for him from a previous visit. The officer told the Applicant he would receive an appointment slip to attend the property section the next day. The Applicant did not accept this and reportedly told the officer (R3/48):
this is fucking bullshit fuck you, you fucking dog. Why are you here fuck off you fucking dog I’m just going to stay here, you can’t do anything. I’ll break your jaw and nose with one punch if you come this side. Fuck you cunt at the snap of a finger I’ll have people fucking you in the ass. That’s why I was in jail snap my fingers I’ll have people fuck you up fuck you in the ass. Even outside I’ll have them fuck you up.
·During a search of the Applicant’s room, officers found three suboxone strips taped onto the back of the Applicant’s mobile telephone. When these were removed and placed into an evidence bag, the Applicant reportedly “became irate and was verbally abusive”. Officers also found a half razor blade, a sharps blade, multiple burnt wires screws and foil, and two dismantled diabetic needles in the Applicant’s room (R3/133).
The Applicant was taken to these incidents at the hearing of this application. The following explanations given by the Applicant illustrate that he downplayed and minimised the incidents. His answers included that:
·He could not recall if he swore (transcript/51, 54, 55).
·Officers had denied him medication “many times” to make problems for him (transcript/51).
·He got nervous and angry but was not aggressive.
·He could not remember one of the incidents because he took a tablet that made him forgetful (transcript/52).
·Officers exaggerated (“made a big deal of”) the incidents (transcript/66).
·Officers swore at him first which caused him to respond.
·Officers were intentionally making problems for him and other detainees (transcript/57, 60-61).
·He does not swear or use bad words (transcript/58).
·Officers were making up reports or exaggerating incidents involving him to use against him (transcript/61-66).
·He feared the officers, rarely leaves his room and that his room had recently been broken into and the officers would not help him (transcript/66; see also 47).
·No drugs or drug paraphernalia had been found in his room and that a friend gave him suboxone to make him feel better, “which is not something serious, something risky, something dangerous” (transcript/67).
For the first time at the hearing of this application, the Applicant alleged that he was assaulted by officers in immigration detention in 2018 (transcript/71):
Why don’t they talk about, why don’t they - why didn’t they provide the report about 2018 incident when the officer hit me through and beat me to death, and also all my face, they broke all my face. I ended up with broken nose and all the face got bruised for no reason, and it was on October 2018 before going to Brisbane, and I never pressed any charges and I didn’t say anything until now.
And, you know, and they did a lot to me, but, you know, no one has mentioned that. Why they didn’t mention about that incident which was huge. Why at 12 am in October 2018 before going to Brisbane I was fine (indistinct) and the officer asked me to go to their office and I asked what’s the reason for that, and said, “Okay, we have something to (indistinct), we’ve got to talk to you.” And I was taken to downstairs and I was tortured and I was - and also they gave me hard time and I ended up in a solo cell and no one had reported that, no one has mentioned that. They try to do anything to make me look bad. This is their intention. If they have recorded everything why didn’t they go through that, why didn’t they bring it up and to mention about those things, and it wasn’t - I didn’t do anything wrong, and I was beaten to death by them.
He also said that he had been “attacked” more than five times in immigration detention and that he did not react, and that he had been slapped and kicked (transcript/19).
I find the Applicant was not a truthful witness and I do not accept most of his explanations. There is no evidence (such as a complaint or any medical evidence) to support his very serious allegations that he was “beaten to death” and “tortured” by officers in immigration detention which resulted in a broken nose and facial bruising. I do not accept that such an incident occurred. Similarly, there is no evidence of any other “attacks” on him in immigration detention. Instead, the evidence suggests that the Applicant responds aggressively towards others when he is angry or frustrated.
Whilst I can accept that the Applicant may have forgotten some of the earlier incidents due to the passage of time, I do not accept that the officers were the aggressors on every occasion and that they had exaggerated or made up the incident reports to cause trouble for the Applicant. There are numerous incident reports between 2017 to 2022 that are consistent in terms of the Applicant’s behaviour and language. I do not think it plausible, as the Applicant has suggested, that various officers conspired over those years to write consistent adverse reports about the Applicant to make trouble for him. I find that the immigration detention incident reports concerning the Applicant are more likely to be a more reliable record of the Applicant’s behaviour than the Applicant’s version of events.
Further, his aggressive and abusive behaviour in immigration detention, often over minor disagreements, and his possession of drugs and drug paraphernalia, raises serious questions about any gains he may have made from undertaking programs concerning violence, substance abuse and consequential thinking in prison.
The evidence that the Applicant gave at the hearing of this application also indicates that he lacks insight into his offending behaviour. He avoided answering questions about his offending, minimised his behaviour, blamed others, claimed not to remember and that he was under the influence of drugs. For example, when asked about his:
·Assault on the 68-year-old man who was trying to park his car when the Applicant punched him, the Applicant said he was young, frustrated about what was occurring in Kurdistan and did not realise what he was doing. He said he would never do such a thing again, that he had done a lot of courses, and that he had already been punished and had learnt his lesson (transcript/17-18).
·“Common assault” and “assault occasioning bodily harm” offences against Centrelink officers, the Applicant responded that he was not the same person that he used to be and that he was not a risk to the community (transcript/19-20).
·18 May 2009 “being armed or pretending to be armed in a way that may cause fear” offence, he denied making the threat to kill and said that the car in which the replica pistol was his friend’s car and that he was “set up” (transcript/21).
·Assault against the parking inspector in May 2010, the Applicant said he was on drugs and could not remember what happened (transcript/26).
·“Disorderly behaviour in a police station” offence on 30 September 2010, he said he could not remember raising fists at police in a threatening manner because he was on drugs (transcript/27).
·Kidnapping, Extortion and Bodily Harm offences of 15 and 16 October 2010, the Applicant stated that he recalled the charges but not the details. He then (transcript/28-32):
osought to blame the victim who was his drug dealer stating, “the way that you explained those charges and those things that I have been accused with, it’s like I’m the wrong person, I’m the guilty and also the other side, they are innocent”;
osaid he was under the influence of drugs at the time and was upset with the victim for not providing the drug he wanted;
osaid that he was not aware that abducting someone was against the law: “at that time I wasn’t aware of Australian regulations and law … and it wasn’t like that I put him in the boot or such things” and “I didn’t know that assault could be considered like a serious, you know, offence”;
ostated that he just wanted to talk to the victim about money and that he brought food for the victim during the offence and that the victim “had heaps of opportunity to flee, but he didn’t”;
oadmitted to being present when his co-offenders tortured the victim but said he was on drugs so was not aware of what was going on;
ofurther sought to blame his co-offenders, stating that, “I didn’t see what they did and myself didn’t have any role in it”, and claimed to be asleep at the time;
odenied using a knife to cut and tear at the victim’s jeans; and
oclaimed the offending was not planned and was “in the spur of the moment” and that “it wasn’t my intention to assault him, to bother him or to do something on him”.
Whilst I accept that a person may not be able to recall some offences or details if they were under the influence of drugs, overall, I find that the Applicant sought to minimise his offending and blame others. The Applicant says that he is remorseful and that he has matured and changed. However, there is insufficient evidence of any victim empathy, and it seems to me that the Applicant is more regretful for the situation he finds himself in, rather than being remorseful for his offending. His lack of insight and failing to take responsibility for his offending, raises serious concerns about his likelihood of reoffending if he was released into the Australian community.
The Applicant has been in prison and immigration detention since November 2010. This is a very substantial amount of time to be removed from the community and from family. The Applicant stated that he fears for his safety in detention (transcript/72), claims to have been assaulted and that he rarely leaves his room to avoid trouble. The Applicant has missed having time with Y and her two daughters. The Applicant expressed regret that he missed the wedding of Y’s adult daughter and was not present for the birth of her daughter. He wants to see his mother who lives in Germany and who he says is dying. He claimed that a very close cousin died when he was in prison (transcript/100 and 111). I accept that it must be emotionally difficult for the Applicant to remain in detention and accept that it is likely that he is suffering from stress due to the uncertainty of his situation. The Applicant has also stated that he weighs 180 kilograms and that his health is deteriorating in immigration detention, and that he has issues with high blood pressure and diabetes (transcript/8, 36 and 101). I accept that the salutary effect of the Applicant’s time in prison and immigration detention, his separation from his family, and the prospect of continued separation from his family if he reoffends and is returned to prison and immigration detention may motivate the Applicant not to reoffend if he is released into the Australian community. I do not have sufficient evidence from which to draw any conclusions as to whether his health issues would limit his ability to reoffend.
Evaluating whether the Applicant is a danger to the Australian community by applying the factors in WKCG
The factors weighing in the Applicant’s favour, that lend support to the conclusion that he does not meet the criterion of being a danger to the Australian community, include:
(a)The Applicant has completed compulsory courses in prison to address his offending behaviour including courses addressing violence, drug use and offending, and cognitive thinking between 2010 and 2014. He also attended 12 sessions of Narcotics Anonymous in 2015.
(b)He would have support from Y in the community and is motivated to find employment, contribute to the community, and to be a family with Y, her two daughters and granddaughter.
(c)The Applicant has skills and work experience as a baker and if he can obtain employment, this may assist to make meaningful use of his time and help him to reintegrate into the Australian community.
(a)His substantial time in prison and immigration detention which he has found to be difficult, and believes has impacted his health, including his separation from family and his recognition that he has missed a significant amount of time and significant events (such as Y’s daughter’s wedding and the birth of Y’s grandchild). This may provide him with motivation not to use drugs and to reoffend because of the likelihood of going to prison and ending up in immigration detention again.
The factors weighing against the Applicant, that support a finding that he is a danger to the Australian community, include the following:
(a)The Applicant has committed numerous and varied criminal offences over a five-year period, including serious violent offences against a range of victims he had minor disagreements or frustrations with. These persons included a 68-year-old man whom the Applicant punched in the face when he was trying to park his car, Centrelink officers, one of who he kicked and the other who he spat at, a parking officer who he spat at, and the Applicant’s drug dealer who he kidnapped and assaulted to extort money. The Applicant’s history shows that he was undeterred by community-based orders which he breached, by fines, and suspended sentences of imprisonment. His criminal history also shows an escalation in seriousness with the Kidnapping, Extortion and Bodily Harm offences.
(b)The Applicant’s driving and traffic history shows that he did not learn from past mistakes. For example, he drove without a licence on several occasions despite knowing that he should not do so and was undeterred by fines and suspensions. His lengthy history of fines supports a finding that the Applicant has a disregard for road traffic laws and the safety of others using the road.
(c)The sentencing Judge remarked when sentencing the Applicant on 11 November 2011, that the Applicant was a high risk of reoffending. Mr Wong assessed him as being a low to moderate risk of violent reoffending. On the evidence before me, including his lack of insight into his offending, and his aggressive and violent behaviour in prison and immigration detention, I would place the Applicant’s risk as falling within the moderate range, at the very least. That is not, in my view, an acceptable risk for offences involving violence and exposes the Australian community to a risk of physical and mental harm, as well as potential loss of life.
(d)The Applicant has not completed any courses in immigration detention despite knowing that they were available to him. This suggests a lack of motivation to engage in rehabilitation. His last prison program was completed in 2014 and he attended Narcotics Anonymous in 2015. Even though those programs dealt with addictions, offending, violence and consequential thinking, the Applicant’s behaviour after those programs tends to negate any gains that he may have made because of completing them. This included his violent and aggressive behaviour in prison and immigration detention. The Applicant’s possession of drugs not prescribed to him and drug paraphernalia also raises concerns about the extent, if any, of his drug rehabilitation and the likelihood of his resuming drug use if released into the community. The Applicant’s behaviour also shows that he reacts aggressively or violently when frustrated, or when things do not go his way. His conduct towards officers in prison and immigration detention (as well as his two assaults against public officers) demonstrates negative and disrespectful attitudes towards persons in positions of lawful authority.
(e)The Applicant has a history of trauma and other mental health issues (depression, anxiety, symptoms of PTSD and Stimulant Use Disorder) which have contributed to his offending, but he has not engaged in any psychological treatment or counselling to address those conditions. Based on his evidence at the hearing of this application he did not have any plans to do so in the community, nor does he have a comprehensive enough plan for his mental health treatment if he is released into the community.
(f)The Applicant does not have any plans or arrangements to engage in any other type of rehabilitation in the community. This is of concern given that Mr Wong recommended a range of supports for the Applicant if he were to be released into the community including involvement in community groups, engaging in residential rehabilitation and engagement with a psychologist and a nutritionist.
(g)I found that the Applicant was not an honest witness. He lacked insight into his offending, sought to minimise it and did not take responsibility for it, including blaming the victim and co-offenders of his Kidnapping, Extortion and Bodily Harm offences. He claimed that he did not know that assault was a serious offence when he had been convicted of assault offences in the past. I found his remorse was less than fulsome, and that the Applicant’s main regret and concern was with his own situation. There was no demonstration or appreciation of any empathy of the impact of his offending on any of his victims.
(h)The Applicant also sought to minimise his conduct in prison and immigration detention. He blamed officers for being the aggressors, saying that he was afraid of them and that they intentionally exaggerated reports about him with the intention of making trouble for him. I have rejected this evidence and found that the contemporaneous reports between 2017 and 2022 (which detail numerous incidents of aggressive and abusive behaviour by the Applicant) are more likely to be accurate than the Applicant’s self-serving evidence. He also claimed, for the first time at the hearing of this application, to have been seriously assaulted by officers in immigration detention and to have suffered a broken nose. This event appears to have been fabricated by the Applicant and I note the absence of any medical or other evidence to support such an allegation.
(i)Prison and immigration detention are controlled environments with rules and procedures that are not present in the community. If the Applicant is unable to regulate his behaviour in those controlled environments, there is a likelihood that he will not be able to do so in the community where he will be unsupervised and where he will have less restrictions.
(j)The Applicant has limited social supports in the community. His sole support appears to be from Y, and possibly Y’s adult daughter. However, Y has withdrawn her support in the past and she knows little about the details of his offending. They appear to have an “on again, off again” relationship and so I am doubtful as to how protective that relationship will be in the future.
I find that factors that suggest the Applicant is a danger to the Australian community far outweigh those that suggest he may not be. I therefore find that there are reasonable grounds to conclude that the Applicant is a danger to the Australian community. That is, there is a present, real, and serious risk that he may cause harm to members of the Australian community by reoffending in a violent manner. To use the language of the Tribunal which, in DMQ20, Collier J found to be an accurate statement of the law, there is “a present risk which is “real” or “significant” or “serious”, and which is “neither remote nor fanciful”, that the Applicant will cause harm of a sufficiently serious nature in the present or future”.
CONCLUSION
For the reasons outlined above, I find that the Applicant does not satisfy the criterion in s 36(1C)(b) of the Migration Act because the Applicant:
(a)has been convicted by a final judgment of a particularly serious crime; and
(b)is a danger to the Australian community.
Further, as s 36(2C)(b) applies, I find that the Applicant does not satisfy the criterion in s 36(2) of the Migration Act.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 19 May 2022 to refuse to grant the Applicant a SHEV under s 65 of the Migration Act, is affirmed.
I certify that the preceding 141 (one hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
............[Sgd]......................................................
Associate
Dated: 23 June 2023
Date of hearing: 9 February, 15 March and 31 March 2023
Representative for the Applicant: Self-represented
Representative for the Respondent: Ms E Tattersall, Sparke Helmore Lawyers
- AGLC
- JTSG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1842
- Case
- [2023] AATA 1842
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether the Applicant had been convicted by a final judgment of a particularly serious crime, and if so, whether he was a danger to the Australian community. These questions were to be determined on reasonable grounds.
The Tribunal considered the Applicant's criminal history, which included offences such as kidnapping, extortion, and assault occasioning bodily harm, as well as numerous incidents during periods of imprisonment and immigration detention. Applying the principles from *WKCG and Minister for Immigration and Citizenship* (2009) 110 ALD 434, the Tribunal assessed the extent and seriousness of the crimes, any mitigating or aggravating circumstances, and the risk of reoffending. Based on this assessment, the Tribunal found that the Applicant had been convicted of a particularly serious crime and was a danger to the Australian community.
Consequently, the Tribunal affirmed the delegate's decision to refuse the grant of the Safe Haven Enterprise visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Consequently, on 5 October 2016, the Applicant’s BVA was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) on the basis that he did not pass the character test because he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (Cancellation Decision) (R1/10). The Cancellation Decision resulted in the refusal of the RSV by operation of s 501F(2) of the Migration Act. The Applicant requested revocation of the Cancellation Decision on 17 October 2016, but on 11 May 2017, a delegate of the Minister refused to revoke the Cancellation Decision (R1/10). On 15 May 2017, the Applicant applied to the Tribunal for a review of the delegate’s decision. The application was heard by a differently constituted Tribunal and on 4 August 2017 that Tribunal affirmed the delegate’s decision (R1/8-29). On 25 November 2020, the Applicant applied for a Class XE – Safe Haven Enterprise (Subclass 790) visa (SHEV), which is the subject of the current proceedings (R1/30). However, on 19 May 2022, a delegate refused to grant the Applicant the SHEV under s 65 of the Migration Act. This is the Reviewable Decision that is currently before me (R1/224-256). The delegate found that the Applicant did not meet the criterion in s 36(1C) of the Migration Act because there were reasonable grounds to believe he had been convicted by a final judgment of a particularly serious crime and was a danger to the Australian community. Similarly, the delegate also found that s 36(2C)(b) applied and that the Applicant did not satisfy the criterion in s 36(2) of the Migration Act (R1/224 and 256). On 31 May 2022, the Applicant sought review of the Reviewable Decision in this Tribunal (R1/6). ISSUES The issues for determination are whether I consider, on reasonable grounds, that:(a)the Applicant has been convicted by a “final judgment of a particularly serious crime”; and(b)if so, whether he is a danger to the Australian community.MATERIAL BEFORE THE TRIBUNAL The application was heard on 9 February 2023, 15 March 2023 and 31 March 2023 by Microsoft Teams. The Applicant was self-represented, and the Respondent was represented by Ms Tattersall of Sparke Helmore Lawyers. The Applicant was also assisted by an interpreter in the Kurdish Sorani language. The Applicant gave evidence on 9 February 2023 and 15 March 2023. Y, whom the Applicant described as his fiancée, also gave evidence on 15 March 2023. The Applicant fell asleep during Y’s evidence, and during Ms Tattersall’s closing submissions, on 15 March 2023. The Applicant was eager for the hearing to conclude on 15 March 2023 because he wanted a quicker result on his application. However, to afford procedural fairness to the Applicant, I ordered a copy of the 15 March 2023 transcript of proceedings, which was provided to the parties when it became available. The hearing then resumed on 31 March 2023. At that resumed hearing, the Applicant was taken through the relevant parts of the transcript concerning Y’s evidence and Ms Tattersall’s closing submissions that he may have missed when he fell asleep and was given the opportunity to comment and respond.