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

[2021] AATA 2917

KQBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2917 (16 August 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0365

Re:KQBN

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:16 August 2021

Place:Sydney

The Reviewable Decision of the delegate of the Respondent dated 19 January 2021 to refuse the Applicant a Class XE - Safe Haven Enterprise visa (subclass 790) under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.

..........................[sgd]..............................................

Senior Member Linda Kirk

CATCHWORDS

REFUSAL OF VISA – application for Safe Haven visa – protection obligations owed to applicant – applicant convicted by final judgment of a particularly serious crime – seriousness and nature of crimes – length of sentence imposed – mitigating and aggravating circumstances -  prospects of rehabilitation – likelihood of reoffending – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth) ss 5, 5M, 36, 57, 65, 500

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

CASES

BHYK and Minister for Immigration and Citizenship [2010] AATA 662

DOB18 v Minister for Home Affairs (2019) 269 FCR 636

FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1513

HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1967

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108

LKQD v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2019) 167 ALD 17

LKQD and Minister for Immigration and Border Protection [2018] AATA 2710

MVLW and Minister for Immigration and Border Protection [2017] AATA 1557

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665

SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1515

SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40

WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434

SECONDARY MATERIALS

1951 Convention relating to the Status of Refugees, Article 33

Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

REASONS FOR DECISION

Senior Member Linda Kirk

16 August 2021

BACKGROUND AND REVIEW APPLICATION

1. KQBN (‘the Applicant’) is a 27-year old citizen of Iran born in April 1994.  He fled Iran when he was aged 18 years and travelled to Australia, arriving at Christmas Island  in mid-2013 as an unauthorised maritime arrival.[1] On 27 May 2013, he attended an entry interview and claimed he could not return to Iran because he was attracted to men and had been harmed for this reason in the past.[2]

   [1] Exhibit R1, T2, 11.

   [2] T6, 77-93

2. On 18 November 2016, the Applicant lodged an application for a Class XE - Safe Haven Enterprise visa (subclass 790) (SHEV).[3] In an accompanying statement,[4] the Applicant claimed he would be harmed in Iran because of his homosexuality.  He also claimed that when he was sixteen, he was in a sexual relationship with a male neighbour and that a few weeks after he had told a different neighbour that he was interested in men, the Applicant was harassed by the Basij and he ‘realised’ that this neighbour must have told the Basij about their conversation. After returning home one day, he found the Basij waiting for him in a van and they blindfolded, beat and raped the Applicant and warned him that the next punishment could be death.

   [3] T9, 102-160

   [4] T9, 149-153

3. On 4 July 2017, the Applicant attended an interview with the delegate.  At the interview, the Applicant raised a new claim that he had not been in a serious relationship in Australia but had ‘friends’. He also claimed he posted ‘gay material’ on social media and had told some of his friends that he was homosexual.[5]

   [5] T2, 14

4. On 9 November 2017, the Department wrote to the Applicant inviting him to comment on adverse information in a National Police History Check that indicated the Applicant was convicted of Common assault (DV) on 15 September 2017. The Applicant was invited to provide a statement including details about the offence within 14 days.[6]

   [6] T15, 187-191

5. On 23 November 2017, the Applicant responded to the invitation and provided a statement in which he provided details of the offence. He claimed that ‘there was no penalty finalised … due to lack of evidence’ and the Court did not ‘direct’ him in terms of rehabilitation as it was a ‘minor incident and one off’.[7]

   [7] T16, 192-193

6. On 18 September 2018, the Applicant was convicted of Stalk/intimidate intend fear physical etc harm (personal), Wield knife in a public place, Affray – T1 and Destroy or damage property <=$2,000 (‘the September 2018 convictions’). He was sentenced to imprisonment for 9 months commencing 30 December 2017 and concluding 29 September 2018.[8]

   [8] T20, 200-201

7. On 14 November 2019, the Applicant was convicted of further offences, including Take/detain person w/I to obtain advantage-SI, Common assault-T2 and Possess prohibited drug (‘the November 2019 convictions’). For the first offence, the Applicant was sentenced to 3 years and 9 months’ imprisonment commencing 8 January 2018 and concluding 7 October 2021, with a non-parole period of two years.[9]

   [9] T20, 200-201

8. On 1 May 2020, the Applicant was released from prison and taken into immigration detention.

9. On 22 June 2020, the Department wrote again to the Applicant inviting him to comment on adverse information pursuant to s 57 of the Migration Act 1958 (Cth) (‘the Act’).[10] In particular, the letter reproduced s 36(1C) of the Act and identified information that indicated the Applicant had been convicted of particularly serious crimes whilst in Australia.

   [10] T22, 334-338

10. On 16 July 2020, the Applicant responded (through his representative). He conceded that he had been ‘finally convicted of particularly serious crimes’, but argued that his bipolar disorder should be taken into account in determining whether he was a danger to the community.[11]

    [11] T25, 342-343

11. On 19 January 2021, the delegate refused to grant the Applicant a SHEV. The delegate was satisfied that the Applicant engaged Australia’s protection obligations under subsections 36(2)(a) and (aa), but considered on reasonable grounds that the Applicant, having been convicted by final judgment of a ‘particularly serious crime’, was ‘a danger to the Australian community’. Accordingly, the delegate found that the Applicant did not satisfy the criterion in s 36(1C) of the Act and refused to grant the visa under s 65 of the Act (‘the Reviewable Decision’).[12]

    [12] T2, 11-34

12. On 25 January 2021, the Applicant applied to the Tribunal pursuant to s 500(1)(c)(i) of the Act for review of the Reviewable Decision.[13]

    [13] T1, 1-6

13. The application was heard by the Tribunal on 3 and 4 May 2021. The Applicant attended the hearing by videoconference from Villawood Immigration Detention Centre (‘VIDC’). The Applicant was self-represented and gave oral evidence and was cross-examined at the hearing.

14. The following documents were admitted into evidence at the hearing:

    ·Exhibit A1 – written and oral statement of the Applicant, filed at the beginning of the hearing on 3 May 2021.

    ·Exhibit A2 – letter of support from SD dated 16 March 2021.

    ·Exhibit A3 – letter of support from CB dated 26 February 2021.

    ·Exhibit A4 – letter of support of AA dated 21 March 2021.

    ·Exhibit A5 – letter of support from YK dated 24 March 2021.

    ·Exhibit R1 – T-documents, filed on 19 February 2021.

    ·Exhibit R2 – Respondent’s ‘Tender Bundle’, filed 14 April 2021.

15. The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.

    REFUGEE CONVENTION AND LEGISLATIVE FRAMEWORK

16. Australia is a signatory to the 1951 Convention relating to the Status of Refugees (‘the Refugee Convention’), to which it acceded on 22 January 1954.  Article 33 of the Refugee Convention provides:

    Article 33 prohibition of expulsion or return (“refoulement”)

    1No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

    2The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

17. Section 36 of the Act relevantly provides:

    Protection visas – criteria provided for by this Act

    (1A) An applicant for a protection visa must satisfy:

    (a)Both of the criteria in subsections (1B) and (1C); and

    (b)At least one of the criteria in subsection (2).

    (1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

    (1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

    (a)is a danger to Australia’s security; or

    (b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

    Note: For paragraph (b) see section 5M.

18. Under s 5M of the Act, a ‘particularly serious crime’, as that term is used in s 36(1C)(b), is defined as follows

    Particularly serious crime

    For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

    (a)a serious Australian offence; or

    (b)a serious foreign offence.

19. Section 5 of the Act relevantly provides a definition of ‘serious Australian offence’:

    ‘serious Australian offence’ means an offence against a law in force in Australia, where:

    (a)the offence:

    (i)     involves violence against a person; or

    (ii)    is a serious drug offence; or

    (iii)   involves serious damage to property; or

    (iv)   is an offence against section 197A or 197B (offences relating to immigration detention); and

    (b)the offence is punishable by:

    (i)     imprisonment for life; or

    (ii)    imprisonment for a fixed term of not less than 3 years; or

    (iii)   imprisonment for a maximum term of not less than 3 years.

    ISSUES

20. The issues that require determination are whether the Tribunal considers, on reasonable grounds, that:

    (a)the Applicant has been convicted by a ‘final judgment of a particularly serious crime’; and

    (b)the Applicant is ‘a danger to the Australian community’.

    EVIDENCE BEFORE THE TRIBUNAL

    Vocational courses and work in Australia

21. In Iran, the Applicant was employed in the hospitality industry and as a barber.  Following his arrival in Australia, the Applicant lived in Brisbane with his uncle for one year and then moved to Sydney where he resided in a share house. He completed a Certificate II in Security at Vigil Training College, Parramatta, a Barista course at the Australian Barista School, Sydney and a First Aid Certificate. He completed work experience at Gloria Jeans for two days in 2017 and IKEA for five days in 2015. [14]  

    [14] T21, 290 - 291

    Criminal offending

22. On 13 December 2016, a charge against the Applicant for the offence Possess prohibited drug was dismissed.[15]

    [15] T20, 200-201

23. On 15 September 2017, the Applicant was convicted of the offence Common assault (DV) -T2 and was fined one thousand dollars.[16]  The circumstances of this offence are contained in NSW Police Fact Sheets which record that the Applicant and HS had an argument and he slapped HS on the face and punched him in the chest with both hands two or three times which caused him to stumble backwards.[17]  The Applicant was asked about this offence during cross-examination.  He said that he and HS only had a verbal argument and that if the CCTV footage had been examined it would have shown that there was no physical violence.[18]  He told the Tribunal that HS had sent him messages in which he had sworn at him, his family and his mother. HS started arguing with him and kept coming closer to the Applicant and he wanted to start a fight, so the Applicant pushed him back to prevent the fight happening. He thought he did not have ‘any other choice’ and does not think that what he did amounted to violence.[19]

    [16] T20, 200-201

    [17] T21 246-249.

    [18] Transcript of proceedings, 3 May 2021, 11.

    [19] Transcript of proceedings, 3 May 2021, 12

    September 2018 convictions

24. On 18 September 2018, the Applicant was convicted in Parramatta Local Court  of Stalk/intimidate intend fear physical etc harm (personal), Wield knife in a public place, Affray – T1 and Destroy or damage property <=$2,000 (‘the September 2018 convictions’). He was sentenced to imprisonment for 9 months commencing 30 December 2017 and concluding 29 September 2018.[20]

    [20] T20, 200-201

25. These convictions related to two incidents that occurred on 18 December 2017 and 29 December 2017 the circumstances of which are contained in NSW Police Fact Sheets.  On 18 December 2017, a group of men allegedly confronted the Applicant in regards his behaviour towards some women while he was shopping at a Target store.[21]  The NSW Police Fact Sheet records that the Applicant was making inappropriate gestures towards females by placing two fingers in a V-shape and putting his tongue in and out of it.  An argument began between the Applicant and the men and they started throwing objects at each other. The Applicant was taken by the store manager to a safe room. He allegedly left the room, procured a 20 cm knife from within the store, and then confronted the group of men and the store manager. He admitted to stating, ‘I’ll cut off your head’.[22]

    [21] T21 254-256.

    [22] T21, 255-256

26. The Applicant was asked about this offence during cross-examination. He denied that he made the inappropriate gesture towards the women.[23] He told the Tribunal that the men started throwing items at him first, and when he was taken to the room by the manager he stayed there and did not flee but rather left because the door was open. He thought the incident was at an end and he wanted to leave the store and go home. When he went to the front of the store the men were waiting there, and they told him ‘Come out. Come out, so that we can kill you. We will not let you live because of what you did.’[24]  He just wanted to get away and he thought that if the police came it would be bad for him because he is an asylum-seeker.[25] It was then that he went and picked up the knife ‘which was a grave mistake’ and he ‘completely regret(s) that decision.’  When he picked it up, he ‘had no intention of using that knife at all.’  He only did so because he wanted ‘to scare those young men’ and because he was really scared for his life and was ‘worried that if they tried to fight [him], they might kill [him].’[26]

    [23] Transcript of proceedings, 3 May 2021, 12

    [24] Transcript of proceedings, 3 May 2021, 13

    [25] Transcript of proceedings, 3 May 2021, 14

    [26] Transcript of proceedings, 3 May 2021, 13

27. On 29 December 2017, whilst in his vehicle, the Applicant approached and followed a 16-year old female who was near a bus stop.[27] He exited the vehicle and followed the victim, yelling to her to ‘come have a chat’. The Applicant then exited the car and ran after the victim. Fearing for her safety, she started running towards home. He is alleged to have yelled ‘don’t run away I will catch you’.  The victim got home and informed her mother of what had occurred, and the incident was reported to the police. The Applicant was arrested that night.[28]  The NSW Police Facts Sheet, records that the Applicant’s behaviour was ‘escalating in relation to inappropriate behaviour towards females in public places’ and he displayed ‘no insight into his behaviour’. Police feared that the Applicant would continue to engage in these types of offences.[29] The Applicant was remanded in custody from 30 December 2017 but was released on 4 January 2018.

    [27] T21 257-260

    [28] T21, 258-260

    [29] T21, 258

28. The Applicant was asked about this offence during cross-examination.  He told the Tribunal that he got out of his car and said ‘hi’ to the girl from a distance of about 50 metres and there was a park between them. He did not know her, but she ‘seemed familiar’ to him and he thought that he had seen her before.[30]  She kept walking and he told her that he wanted to chat with her.  She continued walking away and when he told her again that he wanted to chat with her she started running. After that he went back and sat in his car and read the Bible.[31]  He denied that he said ‘I will catch you. Come back, I will catch you.’ What he said was, ‘Why are you running away?’  He was surprised that she was running away.[32] It did not ‘seem normal’ to him.  Her reaction did not ‘look normal’ and he thought ‘there might be something wrong with her.’  After a few minutes she and another woman came back in a SUV and parked behind him.  His car window was down, and she shouted and swore at him. He couldn’t understand exactly what she was saying as she had a very thick Australian accent. But he understood that she was ‘talking about some sort of harassment’.  He saw the girl in the car in the passenger seat and he just wanted to explain to her that she looked familiar to him and he wanted to chat to her.  The woman then made some kind of threat which he did not completely understand. She then left in the car and sped away. He then went back to his house.[33]

    [30] Transcript of proceedings, 3 May 2021, 16

    [31] Transcript of proceedings, 3 May 2021, 16-17

    [32] Transcript of proceedings, 3 May 2021, 17

    [33] Transcript of proceedings, 3 May 2021, 17.

29. The Applicant was asked whether he thought that the girl who was only 16 years old was running away because she was scared. He said that he did not know how old she was, and he does not think ‘that saying hi to someone … is very scary.’ He was 50 metres from her, and when she started running away, he did not follow her but just went back and sat in his car.  He is ‘a very friendly person’ and ‘liked to chat with other people’ and find out their opinions and beliefs and ‘talk about Jesus’ teaching.’[34] He did not intend for her to be scared nor was it his intention to stalk or follow her. His ‘only intention was to talk with someone about the holy book and the Christian faith.’[35]

    [34] Transcript of proceedings, 3 May 2021, 17.

    [35] Transcript of proceedings, 3 May 2021, 17-19.

    November 2019 convictions

30. Three days later, on 7 January 2018, the Applicant was driving his car in Bondi early in the morning when he saw the victim, a 20-year old woman, waiting at a bus stop. The incident is recorded in a NSW Police Facts sheet. [36]  The Applicant drove up to the bus stop and offered to drive the woman to her destination (being Sydney airport).  The woman accepted his offer and entered the vehicle. The Applicant then proceeded to drive to a suburb in south-west Sydney, away from the airport.  The woman, who was navigating by her phone, made several enquiries about his route, which he ignored. The Applicant refused the woman’s plea that she be allowed to leave the car. The Applicant told her that he had deliberately driven the wrong way because he wanted to spend more time with her and to have sex with her. He told her he had bipolar disorder and had spent time in a mental hospital. The Applicant persisted, despite the woman becoming obviously distressed. The Applicant parked the car in a remote and rural part of Sydney. Fearing for her safety, the woman attempted to flee the car. The Applicant used force to get her back into the car, and allegedly said ‘I can’t let you leave’. The woman was saved when a witness, who happened to be passing by, approached the car to make enquiries. The woman at that moment exited the car and ran towards the witness. The Applicant attempted to tell the witness that the woman was lying and had stolen his phone. However, the witness challenged the Applicant, who was forced to leave the woman alone.  The woman was detained by the Applicant in his vehicle for over three hours. The Applicant was arrested that night and found with a small amount of cannabis in his pocket.[37]   The NSW Police Facts Sheet records police held ‘grave concerns’ that the Applicant’s behaviour was escalating and that if a witness had not walked past at the moment he did, then the Applicant would have sexually assaulted the woman or caused her significant harm.[38] 

    [36] T21 262-265.

    [37] T21, 262-265; T21, 315-333.

    [38] T21, 262

1. The Applicant was asked about these offences during cross-examination. He said that he pleaded guilty because he had picked up the woman and agreed to take her to the airport, but he went on the wrong route because he was not using the navigation system or the GPS.[39] He denied that he told the woman that he wanted to spend more time with her or that he offered her sex. He tried to explain to her that he had taken the wrong route, and when she wanted to get out of the car and go to the airport herself, he ‘was feeling sorry for her’ because he was the cause of her going that far. If she had tried to get there herself it would take much longer than if he had taken her there as there was no bus route and a taxi would have been expensive.[40]  He even offered to pay the cost of her flight because he was the cause of her missing the flight.  He had no intention of having sex with or of sexually assaulting her.  He had a cross hanging in his car, and he put his hands on it and ‘prayed to god that … she would have a safe journey to Melbourne.’[41] He ‘completely regret(s) that he tried to help her.’[42] He is ‘very sorry’ for what happened because it ‘completely ruined her day and it created a large disaster for [him] which [he is] paying for still.’[43] Him taking the woman the wrong way and causing her to miss her flight ‘is a very regrettable action’ but he ‘did not have any ill intentions towards her.’

   [39] Transcript of proceedings, 3 May 2021, 22.

   [40] Transcript of proceedings, 3 May 2021, 24

   [41] Transcript of proceedings, 3 May 2021, 24

   [42] Transcript of proceedings, 3 May 2021, 23.

   [43] Transcript of proceedings, 3 May 2021, 23.

2. The Applicant was asked whether he was using cannabis at the time of the offence.  He said that the night before he had alcohol, but he did not remember taking cannabis. He was taking medications for his mental health on the day.[44]

   [44] Transcript of proceedings, 3 May 2021, 25.

3. On 14 November 2019, the Applicant was convicted in the Campbelltown District Court of Take/detain person w/I to obtain advantage-SI, Common assault-T2 and Possess prohibited drug (‘the November 2019 convictions’). For the first offence, the Applicant was sentenced to three years and nine months’ imprisonment commencing 8 January 2018 and concluding 7 October 2021, with a non-parole period of two years.[45]

   [45] T20, 200-201

4. In her sentencing remarks, Judge English found it was ‘well within [the Applicant’s] contemplation … that he intended to detain this young woman’ and had no intention of taking her to the airport as promised.[46] Her Honour noted that the victim was ‘very distressed’ and there was actual violence at one stage, where the Applicant pushed her back into the vehicle.[47]  She found that the Applicant’s offence of taking or detaining a person with intention to obtain an advantage fell ‘towards the mid-range of seriousness for offences of a like nature’ and ‘certainly not at the lower end as suggested.’[48]

   [46] T21, 328

   [47] T21, 329

   [48] T21, 329.

5. Her Honour found the Applicant’s exhibited regret and guilt sat ‘in stark contrast’ to his delay in entering a guilty plea, and that a truly remorseful offender would admit guilt at the earliest opportunity. Accordingly, Judge English had ‘great difficulty’ in accepting that the offender was ‘truly remorseful and contrite’, and noted that, leading up to the arrest, ‘his propensity to commit acts of violence were escalating’.[49]

   [49] T21, 329-330

6. Judge English acknowledged the Applicant’s abuse of illegal substances ‘aggravates’ his mental health issues, and found that they would be an impediment to his rehabilitation:

   If he is suffering from mental health issues referred to in the material tendered he will need extensive rehabilitation to ensure he adheres to any necessary treatment regime, attends counselling to deal with the trauma of his past and his drug and alcohol abuse and to address any issues which are said to give rise to his offending behaviour. It is of concern that leading up to the commission of this offence his propensity to commit acts of violence were escalating. If he does not address the issues I have referred to then the likelihood of his reoffending is high.

7. Judge English allowed discounts from the maximum sentence due to the Applicant’s previous trauma in Iran; his entering a plea of guilty once the matter was listed for trial;[50] it being the Applicant’s first time in custody for a ‘lengthy period of time’; the Applicant’s criminal antecedents were not so extensive or serious as to disentitle him to leniency; and because incarceration would be onerous owing to his conversion to Christianity.[51] Although Her Honour found the Applicant’s criminal antecedents were not such as to aggravate the Applicant’s offending behaviour or disentitle him to leniency, the Applicant’s criminal history involved convictions for acts of violence and included another guilty plea that was only entered into after the matter had been committed for trial.[52]

   [50] The Applicant did not enter his guilty plea until the matter was listed for trial and accordingly Judge English only prescribed a 5% discount on the ultimate sentence

   [51] T21, 332

   [52] T21, 331-332

   Mental health conditions

8. The Applicant has been assessed on multiple occasions by different psychiatrists. He has been diagnosed with Bipolar Affective Disorder Type I and Substance Use Disorder.[53] He has also experienced manic episodes. Psychiatrists have reported the Applicant experiencing ‘formal thought disorder’, ‘grandiose delusions, ‘psychotic symptoms’, and ‘hearing voices’.

   [53] T21, 312

9. The Applicant’s history of psychiatric care in Australia commenced at Cumberland Hospital in 2016 when he was admitted as an involuntary patient for a manic episode. He was formally diagnosed with bipolar disorder at the Hospital by his treating psychiatrist Dr Yi Ding. The Applicant was treated with the mood stabilising medications lithium and epilim and then switched to the oral antipsychotic olanzapine.[54]

   [54] T21, 306

10. Dr Antony Henderson, consultant psychiatrist, recorded on 16 April 2018 that the Applicant reported that he had been non-compliant with his prescribed psychiatric medications, specifically lithium and the antipsychotic medication paliperidone for three months or more prior to his arrest in January 2018. The Applicant reported ‘that prior to his arrest he felt elevated in mood and thought that he was going to be a famous musician, as well as experiencing more paranoid symptoms such as a sense that the television was talking to him.’ Dr Henderson found no evidence of ongoing mood symptoms and also considered that the Applicant’s account of continued voices was suggestive of pseudo hallucinations.[55] Dr Henderson confirmed a diagnosis of bipolar effective disorder complicated by substance use disorders. He ceased the prescription of mirtazapine.

    [55] While auditory hallucinations involve a person actually hearing stimuli that does not otherwise exist, a pseudo hallucination is a hallucination that appears within the subjective space of the mind rather than through the ears; it does not mean that the person is feigning the hallucinatory experience.

11. In her report dated 2 September 2019, Dr Susan Hawil diagnosed Bipolar I Disorder.  Her report notes the Applicant’s history of psychiatric care at Cumberland Hospital in 2016.  It also records the Applicant had significant depressive and anxiety symptoms on self-report measures and furthermore that he had a provisional diagnosis of PTSD, based upon a self-report measure.[56] Dr Hawil prescribed a treatment plan for the Applicant including Cognitive Behaviour Therapy (CBT), cognitive analysis, challenging and restricting, activity rescheduling, behavioural modification, skills training, relaxation training, drug and alcohol counselling and psychiatric assessment.[57] The Applicant signed an acknowledgment on 10 October 2019 that he agreed to be bound by the conditions of the treatment plan.[58]  

    [56] T21, 288 - 298

    [57] T21, 299

    [58] T21, 301

12. In his report dated 9 April 2020, Dr Gordon Elliott diagnosed the Applicant as suffering from Bipolar Affective Disorder Type I.[59] He noted that the Applicant’s illness had required a relatively prolonged inpatient admission to Cumberland Hospital in 2016, although there is a suggestion that the onset of his illness was at least a year earlier. The Applicant ‘had been treated for classic mania and responded to treatment with mood stabilising and antipsychotic medication’. Dr Elliott noted that it was ‘evident that [the Applicant] was manic on reception into custody, but his mood has responded to antipsychotic treatment and at the time of this assessment his mood was normal.’

    [59] T21, 312

13. The Applicant told the Tribunal that he had been previously been hospitalised for his mental health issues and was discharged after six weeks. He was then linked with Headspace where he had a case manager, a psychiatrist and a psychologist who he would see two or three times a week, and they would call him every other day to check up on him. When he was there, he ‘was feeling very good’ because he ‘was trying to quit using drugs.’[60] After about two or three months he was told that they were closing his file, and would refer him to another organisation, but he did not follow up on going to another organisation. Unfortunately because he did not have any psychologists or counsellors he was taking his medication ‘sporadically’ and went back to using drugs.[61] Around 2017 he regretted his actions and wanted to quit drugs, so he went to the emergency department of Westmead Hospital.[62]

    [60] Transcript of proceedings, 3 May 2021, 28

    [61]Transcript of proceedings, 3 May 2021, 28

    [62] Transcript of proceedings, 3 May 2021, 29

14. The Applicant’s mental health issues were not accepted by Judge English as mitigating circumstances for his offending in connection with the November 2019 convictions. Her Honour noted that the Applicant’s evidence was that he had last been admitted to a mental health facility in 2016. He was incarcerated on 30 December 2017. Accordingly, there was a ‘considerable period of time’ between his admission into a facility and his offence and an absence of evidence as to what occurred throughout 2017 regarding his mental health. Further, there was no evidence of a contemporaneous nature to suggest that he was suffering from a mental illness that contributed to his offending.[63]  Her Honour noted that he will need ‘a longer than normal period of supervision upon parole to … ensure he attends … treatment of any mental health issues’.[64] 

    [63] T21, 330

    [64] T21, 332

    Substance abuse

15. Medical reports in relation to the Applicant indicate a history of extensive drug abuse, including the use of psychotropic drugs.

16. The Applicant reported to Dr Hawil in September 2019 ‘a long history of drug use’ and stated that he first used cannabis at the age of 16 years.[65] He reported using five grams of cannabis per day for a period of two years. He stated that he ceased using cannabis for a few months prior to his arrival in Australia. He relapsed one month following his arrival in Australia and reported using three grams per day. He reported that he used cocaine, LSD and MDMA recreationally from 2015 up until his admission to Cumberland Hospital towards the end of 2016. He further reported that he began experimenting with crystal methamphetamine at the age of 23 years and noted that he would average one gram per week up until his incarceration. The Applicant reported to Dr Hawil that he was consuming one-quarter of a bottle of whisky or gin, in addition to eight average glasses of beer per day on a weekend.  He stated that that he had not participated in alcohol and other drug treatment.

    [65] T21, 291

17. The Applicant reported to Dr Hawil that he had used one gram of crystal methamphetamine, seven grams of cannabis and four to five glasses of beer the night before the offence and 400mg of lithium around 4:00am the same day of the offences that led to the 2019 convictions. Dr Hawil found the Applicant’s ‘long history of substance abuse’ may have exacerbated his mental health problems.[66]  She noted ‘a marked potential for problems with acting out’, and that the Applicant is ‘very likely to be impulsive, sensation-seeking, reckless’ and to have a ‘disregard for convention and authority’ which she linked directly with his Substance Use Disorder.[67]

    [66] T21, 298

    [67] T2, 31

18. In his report dated 9 April 2020, Dr Gordon Elliott refers to the Applicant’s ‘significant history’ of substance abuse.[68] He found the Applicant has comorbid diagnoses of Substance Use Disorders, in particular a Cannabis Use Disorder. He was also engaging in polysubstance use around the time of his arrest. Dr Elliott recommended that the Applicant attends all subsequent appointments with his designated psychiatrist or psychiatry registrar, case manager, and any other member of his treating team; complies with all prescribed psychiatric medications; remains abstinent from all illicit substances and comply with random urinary drug screening; and engage with broader rehabilitation interventions from the treating team, including referrals to other agencies, such as drug and alcohol treatment teams and non-government mental health support agencies.[69]

    [68] T21, 311

    [69] T21, 312-313

    Remorse and responsibility for offending

19. The Applicant pleaded guilty to the charges of Common Assault and Detain person with intent to obtain an advantage. In her report Dr Hawil stated that the Applicant has ‘expressed remorse for the current offence’.[70] The prison Chaplain was similarly of the view that the Applicant was ‘filled with regret and guilt and appears remorseful.’[71] However, Judge English in her sentencing remarks noted the Applicant’s delay in entering a plea of guilty and had ‘great difficulty in finding that the offender in those circumstances is truly remorseful and contrite’.[72]

    [70] T21, 298

    [71] T2, 31

    [72] T21, 330

20. The Applicant has consistently denied wrongdoing in relation to his criminal offending. After entering prison on 14 January 2019, the Applicant was reported by Corrective Services staff to be ‘minimizing [his] criminality’.[73]   On 19 December 2019 the Applicant claimed that the victim lied and that she was ‘trying to punish him because he made her miss her plane’. On 6 January 2020 he claimed that ‘he did not kidnap her and did not suggest having sex’, he ‘emphatically denied he was guilty’ and ‘on multiple times’ stated that he ‘did nothing wrong’. During the same conversation the Applicant stated that in ‘every offence prior … he had done nothing wrong’ and insisted that he was himself the victim. The Corrective Services officer noted that when challenged on facts, the Applicant would deflect the question by talking instead of his own vulnerabilities.[74]

    [73] T2, 31

    [74] T21, 223

21. On 24 March 2020, in an interview with Dr Elliot, the Applicant suggested that he was sorry for what he had done, but then denied that he had ‘propositioned’ the victim, and claimed that he ‘got lost and made the victim miss her flight’.[75] On 7 April 2020 the Applicant admitted that he was wrong to pick up the victim from the bus stop, but insisted that he did not try to have sex with her. He pleaded guilty because ‘he had done the wrong thing’.[76] On 9 April 2020 a Parole Service officer at Parklea prison stated that ‘it is a concern that [the Applicant] continues to minimize the seriousness of his offending’.[77]

    [75] T21, 311

    [76] T2, 32

    [77] T21, 277

22. In her report, Dr Hawil found that the Applicant’s responses to her suggested a ‘marked’ potential for alienation, and that he ‘is likely to place considerable blame on others for his own difficulties.’[78]

    [78] T21, 296

23. Case notes from NSW Department of Corrective Services dated 6 January 2020 record that the Applicant ‘continued to deny (the) offence’ and instead maintained that he did not kidnap the victim; he did not suggest having sex with the victim; he was the victim; and he ‘did nothing wrong’.[79]

    [79] T21, 223

24. A pre-release report dated 7 January 2020 recorded that the Applicant had been ‘unable to express any victim empathy’[80] and found he took ‘no responsibility for his offending behaviour and has continually alleged that the victim is lying’.[81] Community Corrections declined to recommend that a parole order be made for the Applicant at that time.[82]

    [80] T21, 283

    [81] T21, 282

    [82] T21, 287

25. In his report dated 9 April 2020, Dr Elliott recorded that the Applicant apologised for his actions but, when challenged about other records indicating he had denied the offences, the Applicant gave a ‘more measured’ response and said he offered the victim a lift because he was ‘intoxicated with cannabis and drove in the wrong direction’. He denied propositioning the victim for sex.[83]

    [83] T21, 311

26. A NSW Corrective Services Supplementary Pre-release Report dated 7 January 2020 recorded that the Applicant appeared to ‘take some responsibility’ for his offending, but continued to deny that he propositioned his victim to have sex with him.[84]

    [84] T21, 275

    Rehabilitation and courses

27. The Applicant completed the EQUIPS Addiction program on 20 March 2020 while in prison. The NSW Corrective Services Supplementary Pre-Release Report states that the Applicant ‘ha[d] a positive attitude with attendance and participation [was] noted as excellent.’[85]

    [85] T21, 275.

28. A medical record reports that the Applicant stated on 8 October 2020 that he would start smoking cannabis again once released from immigration detention.[86]  During cross-examination, the Applicant denied that he said this and said that he is not going to use any drugs if he is released.[87]

    [86] TB, R17 234

    [87] Transcript of proceedings, 3 May 2021, 31-32

29. The Applicant told the Tribunal in his oral evidence at the hearing that it is more than three years since he has been ‘clean of any drugs’, and he has been taking his mental health medications every day.[88] He said that ‘using the drugs was causing [him] to act in the way that [he] was acting, and it was affecting [his] personality.’  He is now ‘a different person.’[89]

    [88] Transcript of proceedings, 3 May 2021, 27

    [89] Transcript of proceedings, 3 May 2021, 28

30. The Applicant told the Tribunal that he has been in immigration detention for a year. Since he has been in the detention centre, he has ‘visited’ his family through video links, and has had access to psychologists, psychiatrists and medications. He has told his psychologist that if he is released, he will continue taking his medications, and will find a place the same as Headspace that can support him.[90]

    [90] Transcript of proceedings, 3 May 2021, 30-31

    Risk of reoffending

31. During cross-examination, the Applicant was asked whether there remains a risk that he would commit further offences if he were released back into the community. He stated:

    … there would be no further incidents that are going to happen. For the time that I have been here I have really found god. Even though I am in prison, even though I am a prisoner but I have found calm and peace because I have found god and maybe using drugs for so many years might have had adverse effect on my brain but, as I have mentioned previously, I have been continuing and I have been taking my mental health medications … I am sure, and I can promise that if I get out, I can promise, I can guarantee - and my uncle who lives in the community, who’s an Australian citizen can guarantee - that I will be a good citizen, and I will remain a good citizen.[91]

    [91] Transcript of proceedings, 3 May 2021, 27

32. In her report dated 2 September 2019 Dr Hawil stated that the Applicant ‘falls in the low/moderate’ range for risk of reoffending. [92]  Dr Hawil noted in providing her assessment that such scores do not account for the possible impact of treatment.[93]

    [92] T21, 297

    [93] T2, 29

33. In a Pre-Release Report dated 7 January 2020, NSW Corrective Services stated that the Applicant’s LSI-R was ‘medium/high’.[94] A NSW Corrective Services policy document states that those considered ‘medium/high’ have a ‘repeated criminal history’, the ‘greatest likelihood of reoffending’, and ‘many criminogenic needs requiring intensive intervention strategies’. Approximately 79 per cent will reoffend.[95]  

    [94] T21, 285; Level of Service Inventory – Revised (LSI-R) is the standard assessment tool used in NSW to estimate the risk of general reoffending; it is not offence specific. LSI-R is a quantitative assessment based on various factors specific to an individual. The LSI-R is administered within the first twelve weeks after sentencing.

    [95] T2, 29

1. On 7 January 2020 a Community Corrections Officer recommended that the Applicant not be released on parole for the following reasons:

   ·He had not completed any offence related programs;

   ·He lacked insight into his offending;

   ·His post-release plans and accommodation were not then finalised.[96]

   [96] T21, 286

2. In a Supplementary Pre-Release Report dated 9 April 2020, NSW Corrective Services recommended parole, but recorded that the Applicant required further intervention to develop strategies to address his criminogenic needs.[97]

   [97] T21, 276

3. The Applicant was subsequently released from gaol following his completion of the EQUIPS Addiction program on 20 March 2020 and the imposition of a list of requirements while on parole. The NSW Corrective Services Supplementary Pre-Release Report states:

   In relation to his current offence, [the Applicant] requires further intervention to develop strategies to address his criminogenic needs; this can be delivered through counselling, program and service referrals and cognitive behavioural modules which are available to him in a community setting.[98]

   [98] T21, 276

   Future plans

4. The Applicant told the Tribunal that his main support in the community would be from his maternal uncle with whom he would live until he found a place of his own.[99]  He does not think his uncle could support him financially.[100]  He hopes he would have access to Medicare so that he will be able to access his medications and see a psychologist and a psychiatrist.  He also knows a few pastors and is looking forward to seeing them and being able to attend Bible study classes and attend church.[101]  He has some skills, including as a barista and barber, and he hopes he can use these to find a job.[102]

   Letters of support

   [99] Transcript of proceedings, 3 May 2021, 32

   [100] Transcript of proceedings, 3 May 2021, 33

   [101] Transcript of proceedings, 3 May 2021, 32

   [102] Transcript of proceedings, 3 May 2021, 33-34.

   CB – Prison chaplain

5. In his letter dated 26 February 2021, CB, Prison Chaplain wrote that he had known the Applicant since he was at Parklea Correctional Centre, where he served as a Prison Chaplain for Corrective Services NSW.  He confirmed that the Applicant attended chapel services weekly when they were available, and all the programs offered to him by chaplaincy at Parklea CC which included Bible study groups, Positive Lifestyle Programs and the Journey Program by Prison Fellowship.  He completed the programs and remained a consistent member of the weekly Bible study group and Chapel Service. The Applicant also requested ‘time on a one to one basis for some individual prayer and pastoral care from the Chaplaincy team.’  The Applicant ‘was very open and transparent about the reason for his incarceration and how he ended up inside. He was willing to address painful areas of his life that were contributing factors to his incarceration with the help of Jesus.’  The Reverend  continued:

   [The Applicant] has taken full responsibility for his actions that led him to be incarcerated. He has accepted the wrongs he committed and is genuinely remorseful. He shared with me the reasons that drove him to make the poor choices he did. He willingly looked at extremely painful beliefs and feelings that drove some of those poor decisions, including going back to painful times in childhood of overwhelming abuse that led him to believe and feel the way he did before he committed the offence. He’s very committed to seeking the appropriate professional services that could help him rehabilitate and reintegrate into society.[103]

   …

   I believe that [the Applicant] is ready to return to the community he used to be part of. One of his visions upon return is to work with young people at risk so that they can make wise choices in life. He does not want them to end up like him. I believe [the Applicant] would be an asset to our community and not a liability. He is very skilled, multi-talented and above all a humanitarian. He’ll become a very resourceful and useful citizen of Australia. He’s got a lot to offer our country Australia.[104]

   [103] Exhibit A3, 2

   [104] Exhibit A3, 2.

   AA– Applicant’s uncle

6. In his letter dated 21 March 2021, AA wrote that the Applicant is his nephew and he has known him for about 25 years. The Applicant ‘has often proven to be fine and responsible character’ and he ‘can confirm for him that he has been a person of morals and integrity over the time [they] have known each other.’ He is aware that the Applicant has become a Christian and has spent time at Westmead and Cumberland Mental Hospital where he received medications for his mental illness.  He knows the Applicant ‘as a family-person who has always presented himself with grace and [a] caring person’.  He is aware that the Applicant has spent the last two years in gaol and immigration detention and is ‘feeling very remorseful of his past.’[105]

   [105] Exhibit A4

   YK, Iranian Minister

7. In his letter dated 24 March 2021, YK, Iranian Minister, wrote that he has known the Applicant since he was at Villawood Immigration Detention Centre, where he holds an online Persian Bible study two times a week through Zoom video call.  The Applicant continues to participate in these sessions, and he can ‘see how much he has changed and he really regrets not appreciating the opportunity he had before in Australia.’ He believes the Applicant ‘is ready to return to the community and he has already started giving the write (sic) advise (sic) to the other people around him who are struggling in the same ways.’[106]

   [106] Exhibit A5.

   SD, Solicitor

8. In a letter dated 16 March 2021, SD, the Applicant’s former legal representative wrote that his firm represented the Applicant in his 2019 criminal proceedings prior to the matter being transferred to a Legal Aid representative.[107] He wrote that the Applicant has spent time in gaol and immigration detention during which time ‘he has been rehabilitated and demonstrated an insight towards his conduct. He has been remorseful and despondent for his action.’  The Applicant has ‘enormous scope for rehabilitation’ and does not have any immediate family members in Australia.[108]

   [107] Exhibit A2

   [108] Exhibit A2, 2

   CONSIDERATION AND REASONS

9. In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1, at [12], Allsop CJ and Katzmann J recognised that Article 33(1) of the Refugee Convention “is central to the protection to be afforded to a refugee” and “is the cornerstone of the protection of refugees and those seeking asylum.”  Their Honours further identified the function and purpose of Art 33(2) at [21]:

   It is important to recognise not only the place of Art 33(1), but also of Art 33(2) in the contextual fabric for decision-making about those who have been recognised as refugees. It describes the serious conditions that justify the return of a refugee to a place where he or she may face persecution. Article 33(2) and the circumstances within it reflect the balance contained within the Refugees Convention between protection of those who need it, and the legitimate entitlement of Contracting States not to be required to give protection to those who pose a danger to the host State and its people.

10. Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The outline to the Explanatory Memorandum to the Bill stated at 12:

    The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa. The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of ‘refugee’ but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa.

11. Paragraph 1236 of the Explanatory Memorandum further stated:

    New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention. As such, a person who is captured by new subsection 36(1C) will not engage Australia’s non-refoulement obligations under the Refugees Convention or for the purposes of the new statutory framework relating to refugees.

12. It is against this background that the Tribunal now considers whether the Applicant’s offending is such that the requirements of s 36(1C) are satisfied thereby disentitling him to the grant of a protection visa.

    Has the Applicant been ‘convicted by a final judgment of a particularly serious crime’?

13. The Applicant conceded before the delegate that he had been convicted by final judgment of a particularly serious crime.[109]

    [109] T25, 342

14. On 15 September 2017, the Applicant was convicted of Common Assault (DV). On 18 September 2018, he was convicted of the September 2018 convictions, and on 14 November 2019, he was convicted of three further offences comprising the November 2019 convictions.

15. The Applicant has been convicted of offences which meet the threshold of being a ‘serious Australian offence’ in section 5M(a) of the Act. A ‘serious Australian offence’ is defined in s 5(1)(a)(i) of the Act to include an offence ‘that involves violence against a person’ which is punishable by a ‘imprisonment for maximum term of not less than three years’: s 5(1)(b)(iii) of the Act.

16. At least three of the offences for which the Applicant was convicted were punishable by a maximum term of imprisonment of not less than three years. These include the following:

    ·Affray – section 93C Crimes Act 1900 (NSW) – maximum penalty of 10 years;

    ·Stalk or intimidate another person with the intention of causing the person to fear physical or mental harm – section 13(1) Crimes (Domestic and Personal Violence) Act 2007 – maximum penalty of 5 years;

    ·Taking or detaining a person without the person’s consent, with the intention of obtaining an advantage – section 86(1)(b) Crimes Act 1900 (NSW) – maximum penalty of 14 years.

17. The Tribunal is satisfied that the offences for which the Applicant were convicted also ‘involve violence against a person’. The Affray offence for which the Applicant was convicted on 18 September 2018 involved an incident in a Target store between the Applicant and several males, during which the Applicant picked up a 20cm knife and shook it in the direction of the males and the store manager. In sentencing the Applicant in November 2019 for the offence of Taking or detaining a person, Judge English found that the Applicant’s actions included ‘actual violence’ against the victim. 

18. Based on this evidence, the Tribunal is satisfied that the Applicant has been ‘convicted by a final judgment of particularly serious crimes’, for the purposes of s 36(1C)(b), which are ‘serious Australian offence[s]’ under s 5M(a) and s5(1) of the Act, as they involve violence against a person, punishable by a term of at least three years’ imprisonment.

    Is the Applicant ‘a danger to the Australian community’?

19. The determination of whether the Applicant poses a ‘danger to the Australian community’ does not involve the exercise of a discretionary power. If the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision: s 65 of the Act and MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 (‘MVLW’) at [29]-[32]. It cannot balance the danger the Applicant poses to the community against the possible harm they may face if returned to their home country: SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 at [27].

20. In its submissions, the Respondent referred to the differing interpretations of ‘danger to the Australian community’ under s 36(1C)(b) of the Act by Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 (‘WKCG’) and by Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636 (‘DOB18’).[110]

    [110] Respondent’s SFIC para 25-29

21. In WKCG, Deputy President Tamberlin articulated the following meaning of ‘danger’ in the context of s 36(1C)(b) of the 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’.

    (Emphasis added).

22. Deputy President Tamberlin explained  that whether a person is a danger to the Australian community is a question of fact and degree, and that regard must be had to all the circumstances of each individual case.[111]  The Deputy President’s interpretation of ‘danger’ in s 36(1C) of the Act has been applied in subsequent Tribunal decisions including BHYK and Minister for Immigration and Citizenship [2010] AATA 662 (‘BHYK’); MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 (‘MVLW’); LKQD and Minister for Immigration and Border Protection [2018] AATA 2710 (‘LKQD’); and RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665.

    [111] WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434, 25.

23. In DOB18 Logan J, by way of obiter at [83], articulated his interpretation of ‘danger’ in the context of s 36(1C) of the Act. His Honour observed that ‘danger’ and ‘risk’ are qualitatively different concepts at [72]:

    The meaning to afford “danger” in s 36(1C)(b) of the Act must commence with the text itself, with context and general purpose and policy being relevant to the determination of the meaning to give to the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27. The word “danger” can mean “risk” but also carries with it the meaning of “the condition of being exposed to the chance of evil; risk, peril” (Oxford Dictionary). As is observed in respect of the word, “danger” in Garner’s Modern English Usage, “Idiomatically speaking, one runs a risk, not a danger.” Yet, as a matter of ordinary experience of English idiom, the word, “danger” on a public warning sign conveys a very different and heightened sense of potential peril than would the word, “risk”. Indeed, for that reason, and again as a matter of ordinary experience, it is rare, if at all, that one encounters a warning sign with the word, “risk” in prominence. “Danger” and “risk” are not, in English usage, in my view, exact synonyms. When regard is had both to the text and to the nature and purpose of the provision, it is inherently unlikely that, the word, “danger”, as found in the exception, refers to a risk that is discernible but which is trivial, nothing more than a bare possibility.

24. His Honour held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’, and to the extent that WKCG suggested otherwise, His Honour disagreed.[112]  He stated at [83]:

    In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a ‘risk’, perhaps small. In my view, read in context, ‘danger’ in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about ‘danger’. In my view, it carries a narrower and more restrictive meaning than just ‘risk’.

    (Emphasis added)

    [112] DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 83.

25. Logan J’s comments have resulted in a perceived tension in the current case law regarding the interpretation of ‘danger’ in s 36(1C) of the Act. The Respondent submitted that the differing approaches of Deputy President Tamberlin and Logan J can be reconciled.[113]  The Respondent cited the following passage from HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1967 (‘HYTB’) where the Tribunal considered there was no inconsistency between WKCG and DOB18 and observed, at [64]:

    It is consistent to say that in order for a person to be a “danger” there must exist, at the time of the decision, a present risk which is “real” or “significant” or “serious” which is “neither remote nor fanciful” that the person will cause harm of a sufficiently serious nature (for example “of physical harm, or extreme emotional harm”) in the present or the future. If no such risk is present at the time of decision, it cannot be said that a person is a danger. Similarly, if a present risk of future harm relates to a harm which is insufficiently serious, for example a moderate risk of mere “upset” then the person will not be a danger. Conversely, if there is a low risk but one which is none-the-less “real” or “significant” or “serious” of particularly serious future harm, say grave physical injury, then that risk may be sufficient to determine that a person is a danger to the Australian community.

    [113] Respondent’s SFIC, p 6.

26. In SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1515 at [39], Senior Member Dr M Evans-Bonner agreed that the views of DP Tamberlin and Logan J can be reconciled, and this Tribunal respectfully agrees.

27. In LKQD v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2019) 167 ALD 17 Jackson J at [57] rejected a contention that ‘danger’ referred to in s 36(1C) should be construed to mean a ‘very serious danger’, finding that it simply said ‘danger’. His Honour considered the remarks of Logan J and held, without deciding their correctness, that even the ‘present and serious risk’ standard did not rise to the level of ‘very serious danger’ at [62].

28. In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (‘KDSP’) at [54]-[55], Bromberg J explained in obiter that the statutory criterion of ‘danger’ in s 36(1C) suggests a ‘high level of risk’ and that this reflects the balancing exercise contained in Article 33(2) to which s 36(1C) gives effect:

    Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]). …

    That a stringent level or standard is required by s 36(1C) in relation to the prerequisites that must exist to engage its operation is explained by the nature of the balancing exercise by which those standards have been formed. A host State’s tolerance of the risk of harm is understandably higher in relation to people who are in need of protection and who, in the absence of being provided protection, may face significant harm.

1. Having regards to the above authorities, the Tribunal finds that s 36(1C)(b) requires an assessment of whether the Applicant presents a real and significant possibility of ‘danger to the Australian community’, and that ‘danger’ requires a qualitatively higher level of possible harm and ‘conveys a very different and heightened sense of potential peril than would the word, “risk”’.  A stringent standard is required in order to give effect to Australia’s obligations under Article 33(2) of the Refugee Convention, which s 36(1C) is intended to codify.

2. In WKCG Deputy President Tamberlin identified some of the factors relevant to an assessment of whether a person is a ‘danger to the Australian community’ at [26] - [27]:

   Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

   The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism …

3. These factors provide useful tools for an assessment of whether the Applicant is a ‘danger to the Australian community’.  However, as Senior Member Morris observed in FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1513 at [124], this list should not be taken to be exhaustive and regard must be had to all the circumstances of each individual case.

   Seriousness and nature of the crimes committed

4. The evidence before the Tribunal is that the Applicant’s offences, particularly those which resulted in the 2018 and 2019 convictions are very serious. These offences involved threats of and actual violence towards members of the Australian community, including males who were unknown to the Applicant, a manager in a Target store, a 16-year old female minor, and a 20 year old woman.

5. The Applicant has shown a propensity to engage in criminal and violent behaviour, including while awaiting court appearances for offences for which he had been charged.  The Applicant’s serious offending is limited to a relatively short period of time from December 2016 to January 2018. However, the nature and sequence of the Applicant’s offending indicates that he showed little regard for the clear warnings that police had provided in relation to his behaviour, or the consequences of that behaviour. It also demonstrates that during this period of time his offending was both prone to violence, or the threat of violence, and was escalating in seriousness. Bail and the threat of prison had no apparent effect on the Applicant. His offending was halted only by his incarceration.

6. The Applicant’s particularly serious crimes identified above were aggravated by the fact that his violent and intimidatory conduct was unprovoked and targeted largely at members of the public and employees who are entitled to safety in going about their daily lives and work and not be subjected to threats, harassment and violence. The offence involving the 16-year girl would have been terrifying for her and is very serious.  The fear and distress the Applicant caused to the 20-year old victim of his 2019 convictions who he detained against her will in his car just days later is evident from the statement she gave to the police:

   I started to cry, I was crying because I was scared of what I thought was about to happen to me. The male reached over and touched me on the shoulder and said, “Why are you crying?” He didn’t say this like he was concerned, he said it like he was agitated by my crying. He said it several times, "Are you seriously crying? Why are you acting?”

   …

   Things were now becoming physical and I was scared he was going to hurt me. I just let him take my phone and bag and he sat back in the car. I felt like I couldn’t leave now because he had absolutely everything that I had in Australia in the car with him and I was isolated in the middle of nowhere. He even had my passport in the bag.[114]

   [114] TB, R5, 113 -114

7. Of the Applicant’s nine convictions in the three-year period from September 2017 to November 2019, six of his offences involved actual or threatened personal violence against his victims. The Applicant has therefore been convicted of repeated violent offences, some of which have been against young women, including a minor. The number of these offences, the pattern of his most recent offending namely (violent offending repeatedly directed against young women) and the escalating seriousness of the offending support a finding that the Applicant’s behaviour poses a threat of serious harm to members of the public and that he is therefore a danger to the Australian community.

   Length of the sentence imposed

8. The Applicant’s National Police History Check records he has been sentenced to a total period of 54 months’ imprisonment for the commission of six offences comprising:

   ·     A term of nine months’ imprisonment, commencing on 30 December 2017 and concluding on 29 June 2018;

   ·     A term of three years and nine months’ imprisonment commencing on 8 January 2018 and to conclude on 7 October 2021.

9. In the period April 2018 to July 2020 the Applicant spent a total period of two years and five months in prison. In PNLB and Minister for Immigration and Border Protection [2018] AATA 162 the Tribunal at [22] noted that, ‘[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.’ The custodial sentences imposed on the Applicant by the courts, particularly the three years and nine months imposed by Campbelltown District Court in November 2019, indicate that the courts have considered the Applicant’s offending to be very serious.  The Tribunal finds that the imposition on the Applicant of terms of imprisonment is an objective indicator of the seriousness of his offending and supports a finding that he is a danger to the Australian community.

   Mitigating and aggravating circumstances

10. The delegate accepted that the Applicant had a history of past trauma in Iran and that he had experienced harm in Iran on account of identifying as a homosexual.[115] Judge English in sentencing the Applicant for the 2019 offences allowed discounts from the maximum sentence due to his previous trauma in Iran, his entering a plea of guilty, and it being the Applicant’s first time in custody for a long period. Her Honour did not consider that the Applicant’s criminal antecedents were so extensive or serious as to disentitle him to leniency.  Even taking into account the mitigating circumstances, Judge English found that the Applicant’s offending fell ‘towards the midrange of seriousness for offences of a like nature, certainly not at the lower end as suggested’.  

    [115] T2, 18-22.

11. On the basis of the psychiatric reports of Dr Hawil and Dr Elliott noted above, the Tribunal accepts that the Applicant suffers from Bipolar Disorder and Substance Abuse Disorder, that he experienced past trauma and harm in Iran for reason of him identifying as a homosexual, and that a combination of these factors have contributed to his offending.  However, these factors do not lessen the objective seriousness of the Applicant’s criminal offending, nor do they decrease the likelihood he will pose a danger to the community, particularly when the evidence indicates that his mental health conditions remain insufficiently addressed.

12. Judge English did not regard the Applicant’s mental health issues to be mitigating circumstances for his offending in connection with the November 2019 convictions. The evidence before Her Honour and the Tribunal is that the Applicant was not vigilant in adhering to his medication regime and attending regular consultations with mental health practitioners when he was in the community. The Applicant’s evidence to the Tribunal is that following spending six months with Headspace in 2016 he did not take steps to find another organisation who could provide him with support and treatment. This led him to taking his medication only ‘sporadically’ and resuming drug taking.[116] Whereas the Applicant’s mental health condition has stabilised since he has been incarcerated, due to him being largely compliant in taking his prescribed medication, it is unclear whether he would be able to maintain this compliance if released into the community.

    [116] Transcript of the hearing dated 3 May 2021, 28

13. In relation to aggravating factors, two of the Applicant’s victims were vulnerable young women. The female victim of his 2018 conviction for Stalk/intimidate intend fear physical etc harm (personal) was a 16-year old girl who would have been terrified by her interactions with the Applicant.  The young woman who was the victim of his 2019 conviction for Take/detain person w/i to obtain advantage-SI was particularly vulnerable as she was a tourist unfamiliar with Sydney, and was detained by the Applicant in his car against her will a long way from her destination and the help of others.

14. The Applicant has showed little remorse for his offending or insight into the impact of his actions on his victims.  Whereas he pleaded guilty to the charges of Common assault and Take/detain person and expressed his remorse to Dr Hawil and the prison Chaplain, Judge English had ‘great difficulty in finding that the offender … is truly remorseful and contrite’ in circumstances in which he had delayed in entering a guilty plea.  The Applicant has consistently denied wrongdoing and minimised the degree of his culpability for his offending from the time he was arrested.  This attitude of denial persisted even after he had pleaded guilty, been sentenced and served his time in prison, and continued during his evidence to the Tribunal at the hearing.  The Applicant has repeatedly shown an inability to express any sympathy for his victims and refuses to take responsibility for his offending behaviour.  Other than acknowledging that he ‘ruined her day’, the Applicant does not recognise the emotional distress, fear and anxiety he caused to the victim of his 2019 convictions. He continues to claim that he did nothing wrong in his interactions with his two female victims and denies that he had improper motives in relation to them. Instead he claims that he is a ‘friendly person’ who tries to ‘help’ people out and feels ‘sorry’ for them when things don’t work out for them. Most alarmingly, he appears to believe that he is the victim, referring to the Take/detain offence in January 2018 as having ‘created a large disaster for [him] which [he is] paying for still.’[117]The Applicant’s refusal to take responsibility for his actions or to show remorse or sympathy for his victims persists to the present-day despite, him receiving treatment in prison which has improved and stabilised his mental health condition.

    [117] Transcript of the hearing dated 3 May 2021, 23

15. Given that the Applicant continues to deny any wrongdoing and refuses to take responsibility for his actions despite the passage of three and a half years, and him being incarcerated in gaol or immigration detention for the duration this period and receiving treatment for his mental health condition, the Tribunal cannot be confident that his attitude will change in the future. The Tribunal finds the Applicant’s lack of remorse and empathy for his victims, together with his lack of insight into the seriousness of his offending, supports a finding that the Applicant is a danger to the Australian community.

    Extent of the criminal history, period over which prior crimes took place, and criminal record as a whole

16. The Applicant was convicted of nine offences in the period between December 2016 and January 2018, demonstrating a high frequency of offending in a short period of time. He was released from custody on 4 January 2018 following his offending against the 16-year old girl, and reoffended just three days later when he detained the 20-year woman in his car. The Applicant has demonstrated a clear propensity to commit acts of violent behaviour and the level of violence has escalated over time.

17. The Applicant has not re-offended since 7 January 2018, however he was incarcerated from 8 January 2018 to 1 May 2020, following which he was taken into immigration detention. Apart from his time in incarceration and immigration detention, the Applicant engaged in a period of sustained offending since December 2016. He had only a three-day period in the community in January 2018 during which he was neither charged with nor detained for an offence, immediately following which he committed the serious offences which gave rise to the November 2019 convictions.

18. The sustained nature and frequency of the Applicant’s criminal offending since December 2016 and its escalating seriousness weigh strongly in favour of a finding that the Applicant is a danger to the community.

    Prospects of rehabilitation, risk of re-offending and recidivism and the likelihood of relapsing into crime

    Prospects of rehabilitation

19. The Applicant received some treatment for his substance abuse disorder and completed the EQUIPS Addiction program while he was in prison. His evidence to the Tribunal is that it is more than three years since he has been ‘clean of any drugs’.  The Tribunal also notes the Applicant’s evidence that when he spent a six week period with Headspace in 2016 that he ceased drug taking, but resumed shortly after leaving their care when he did not take steps to find another organisation which could provide him with support and treatment for his drug addiction.  Accordingly, whereas it is commendable that the Applicant has been abstinent from drug taking in the past three years, his previous history of relapsing into drug use when he is not closely supervised means that it is difficult to find that the Applicant has adequately addressed the Substance Abuse Disorder which he was diagnosed with by Dr Elliott as recently as April 2020, and that he would not resume taking illicit drugs when unsupervised in the community.

20. The Applicant has had treatment for his mental health conditions in gaol and immigration detention and the evidence is that he is compliant with his treatment.  However, the Tribunal notes Judge English’s observations in her sentencing remarks that there was nothing to suggest that at the time the Applicant committed the offences that led to the November 2019 convictions he was suffering from a mental illness that in some way contributed to his offending behaviour.[118] The evidence before the Tribunal is that the Applicant was compliant with his medication at the time of these offences. 

    [118] T21, 330

21. As noted above, it is of critical concern is that the Applicant continues to minimise and deny his offending and its impact on his victims.  This indicates that even when the Applicant’s mental health conditions are stable, he remains unable to understand or unwilling to acknowledge that his actions towards the two young victims was highly distressing to them and amounted to criminal behaviour.  He told the Tribunal that he did not think it was ‘normal’ that a 16-year old girl who was being accosted by him would run away in fear.  This demonstrates that the Applicant continues to have a complete lack of insight into the gravity of his offending and how his behaviour affects other people. Similarly, in relation to his most recent offence against the 20-year old woman he accepted the incident was serious, but only because he mistakenly took the wrong route to the airport which caused her to miss her flight to Melbourne.  More than three years after he committed these offences, the Applicant demonstrates a complete absence of any insight into the gravity of what occurred that day and how distressing it would have been for the victim.

    Risk of re-offending and recidivism

22. The Applicant has been assessed as having a medium to high risk of reoffending. In her sentencing remarks, Judge English commented the Applicant ‘will need extensive rehabilitation to ensure he adheres to any necessary treatment regime, attends counselling to deal with the trauma of his past and his drug and alcohol abuse and to address any issues which are said to give rise to his offending behaviour’, and if he did not take steps to address these issues ‘then the likelihood of his reoffending is high.’  On 7 January 2020 a NSW Corrective Services Pre-Release Report stated that the Applicant’s LSI-R was ‘medium/high’.[119]

    [119] T21, 285; Level of Service Inventory – Revised (LSI-R) is the standard assessment tool used in NSW to estimate the risk of general reoffending; it is not offence specific. LSI-R is a quantitative assessment based on various factors specific to an individual. The LSI-R is administered within the first twelve weeks after sentencing.

23. Whereas the Applicant has given evidence that he has ceased drug taking, is stable on his medication, and has a strong commitment to his Christian faith, the Tribunal cannot discount the probability of the Applicant reoffending, particularly in circumstances where he has displayed a complete lack of insight into the seriousness of his offending and its impact on his victims.

24. There is limited evidence before the Tribunal of family and community supports available to the Applicant which would assist with his rehabilitation and reintegration if he were released into the Australian community.  The Applicant’s evidence is that he would live temporarily with his maternal uncle, AA, until he can find a place of his own. He said that his uncle cannot support him financially.  In his written statement, AA does not indicate how he intends to provide support or assistance to the Applicant upon his release. As AA is the only family member who can provide the Applicant with any support, and because the nature of this support is not specified, the evidence does not support a finding that the Applicant would have the assistance and encouragement he requires to comply with his medication, access psychological treatment, abstain from drug taking, and find stable employment which will allow him to re-establish himself in the community and not re-offend.

25. The Tribunal has had regard to the statements of CBand YK, who attest to the Applicant’s practise of his Christian faith while in prison and detention. The Applicant’s claim is that he converted to Christianity following his arrival in Australia and has referred to his practise of his Christianity during the time that he offended between December 2016 and January 2018.  The Tribunal places limited weight on these statements as supporting a finding that the Applicant’s strong commitment to his Christian faith will reduce the risk of him re-offending if released, as it clearly did not deter him from offending in the past.

26. The Tribunal has also placed limited weight on the claim by CB that the Applicant ‘has taken full responsibility for his actions that led him to be incarcerated. He has accepted the wrongs he committed and is genuinely remorseful’ for reason that this is inconsistent with the lack of remorse and responsibility for his offending expressed by the Applicant in his oral evidence at the hearing.  SD’s statement that the Applicant ‘has been rehabilitated and demonstrated an insight towards his conduct. He has been remorseful and despondent for his action’ is unsupported by the evidence and he does not provide any examples of how the Applicant has rehabilitated. For this reason, the Tribunal has also placed limited weight on his statement.

1. Based on the evidence before it, the Tribunal cannot be satisfied that the Applicant has made adequate progress towards rehabilitation and addressing the issues that gave rise to his offending behaviour in the manner urged by Judge English in her sentencing remarks.  Accordingly, the Tribunal finds that the Applicant remains at a medium/high risk of re-offending as he was assessed to be by NSW Corrective Services in January 2020.  This weighs strongly in favour of a finding that the Applicant is a danger to the community.

   Likelihood of relapsing into crime

2. The Applicant received a warning from the Department that his criminal conduct could lead to him having his application for a SHEV refused.  On 9 November 2017, the Applicant was invited by the Department to comment on ‘unfavourable information’ in his National Police History Check which indicated he had been convicted of Common assault (DV) on 15 September 2017 and ordered to pay a fine of $1,000.  Despite this clear warning, only one month later, the Applicant committed the offences resulting in the September 2018 convictions.  Accordingly, despite being clearly put on notice by the Department’s invitation that his visa application was potentially adversely affected by his recent offence, and could be refused, the Applicant proceeded to disregard this warning and committed more serious offences just one month later in December 2017 and January 2018.

3. The Tribunal finds that the Applicant’s claimed fear of being returned to Iran should have been a strong motivation for him to cease criminal offending. The fact that this was not a strong incentive against him reoffending in the past markedly lessens the likelihood it will be a factor motivating the Applicant not to offend in the future should he be permitted to remain in Australia.

4. The Applicant’s previous lack of willingness to obtain the programs and treatment he requires when living in the community, means that it is difficult to be confident that he will continue the treatment he needs for his Bipolar Disorder and Substance Abuse Disorder if he is permitted to re-enter the community.  If the Applicant is granted a SHEV, and following the end of his parole in October 2021, he will resume his life without restrictions or supervision requirements.  There will be no orders in place requiring him to continue with his current treatment program or to report to hospital or a mental health practitioner for regular monitoring of his progress. Accordingly, as noted above, there is a considerable risk that the Applicant will not comply with his medication and/or resume drug taking, and this will lead him to re-offend and cause harm to members of the Australian community.

5. Based on an evaluation of the factors identified by Deputy President Tamberlin in WKCG, the following is a summary of the Applicant’s behaviour and circumstances which support a finding that he presents a real and significant possibility of ‘danger to the Australian community’:

   a)The Applicant’s crimes are objectively serious and violent in nature, involving both actual and threatened physical violence against his victims, who included two vulnerable young females.

   b)Any mitigating circumstances identified in the Applicant’s offending are outweighed by countervailing aggravating circumstances, in particular the influence of substance abuse on the Applicant’s conduct, his propensity to target particularly vulnerable victims, and his complete lack of insight into the impact of his offending on his victims.

   c)The Applicant’s criminal history over the period December 2016 to January 2018 was prolific and escalating in seriousness and ceased only when he was incarcerated.

   d)There is a strong likelihood of the Applicant re-offending, given his demonstrated propensity to re-offend in the past, his ongoing denial of responsibility for his criminal behaviour, and his complete lack of insight into the impact of his offending.

   e)The Applicant has made some progress towards rehabilitation by ceasing drug taking. However, his previous history of relapsing into drug use and being non-compliant with his medication when unsupervised in the community, and the absence of any family or other assistance or supports, creates a real risk he will not continue to successfully rehabilitate if released.

   CONCLUSION

6. For the reasons outlined above, the Tribunal finds that the criterion in s 36(1C)(b) of the Act are satisfied for reason that the Applicant:

   (a)has been convicted by a final judgment of a particularly serious crime; and

   (b)is a danger to the Australian community.

   DECISION

7. The Reviewable Decision of the delegate of the Respondent dated 19 January 2021 to refuse the Applicant a Class XE - Safe Haven Enterprise visa (subclass 790) under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

.....................[sgd]...................................................

Associate

Dated: 16 August 2021

Date(s) of hearing:	3 & 4 May
Applicant:	Self-represented
Solicitors for the Respondent:	Ms A Zinn, Mills Oakley Lawyers