KYMM and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 2388
•29 July 2022
KYMM and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2388 (29 July 2022)
Division:GENERAL DIVISION
File Number: 2021/3457
Re:KYMM
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:29 July 2022
Place:Melbourne
The decision of a delegate of the Respondent dated 3 May 2021 to refuse to grant a protection visa to the Applicant is set aside and remitted to the Respondent for reconsideration in accordance with the direction that the Applicant is not a danger to the Australian community.
........................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – refusal to grant protection visa – whether convicted of particularly serious crime – whether a danger to the Australian community – seriousness and nature of offending – majority of offending as a minor – diagnosis of schizophrenia and expert medical opinion considered – decision set aside and remitted
Legislation
Crimes Act 1958 (Vic)
Mental Health Act 2014 (Vic)
Migration Act 1958 (Cth)
Freedom of Information Act 1982 (Cth)
Sentencing Act 1991 (Vic)
Summary Offences Act 1966 (Vic)
Youth Justice Act 1992 (Qld)Cases
Australian Postal Commission v Hayes and Another [1989] FCA 176
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
DOB18 v Minister for Home Affairs [2019] FCAFC 63
FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541
JRJZ and Minister for Home Affairs (Migration) [2018] AATA 3687
KYMM and Minister for Home Affairs [2019] AATA 5174
KYMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1069
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82
QGMJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2314Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
Secondary Materials
United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
29 July 2022
BACKGROUND
KYMM applied to the Tribunal on 27 May 2021 for review of a decision of a delegate of the Minister, dated 3 May 2021, to refuse the grant of a Protection (subclass 866) visa. The decision was made on the basis that KYMM did not satisfy s 36(1C) of the Migration Act 1958 (the Act) as they have been convicted of a particularly serious crime and are a danger to the Australian community.
The delegate also determined that KYMM was a person in respect of whom Australia has protection obligations, in that they were satisfied there was a real risk the Applicant would suffer significant harm if removed from Australia to South Sudan.
KYMM applied for a protection visa in September 2020. This came after a decision of the Tribunal, differently constituted, to affirm a delegate’s decision not to revoke the mandatory cancellation of their Global Special Humanitarian visa; a decision upheld in an appeal to the Federal Court of Australia.[1] KYMM had held this visa since its grant in May 2005 and arrived in Australia in December of the same year.
[1] KYMM and Minister for Home Affairs [2019] AATA 5174; KYMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1069.
The Applicant’s date of birth has been a matter of conjecture in the past, and police records posit a date of birth in 1993. This subject was taken up in the earlier Tribunal decision, where a 1995 date, as submitted by the Applicant to be correct, was preferred.[2] The present matter proceeded on the basis that KYMM was born in 1995 and was, accordingly, ten years of age on arrival in Australia, and 27 years old at the time of the hearing.
[2] KYMM and Minister for Home Affairs [2019] AATA 5174, at [30]-[34].
KYMM has a history of offending commencing in 2011 at age 16 and much of this offending occurred when the Applicant was a minor.
The Applicant was represented before the Tribunal and lodged a Statement of Facts, Issues and Contentions (SFIC), and a SFIC in Reply. A Hearing Book (HB), comprised of two volumes, was prepared and lodged by KYMM’s representatives which incorporated the following material:
(a)Applicant’s List of Authorities;
(b)Witness statement of Ms O;
(c)Witness statement of the Applicant;
(d)Witness statement of Ring Mayar;
(e)Letter of support from the Asylum Seeker Resource Centre (‘ASRC’);
(f)Letter of support from Foundation House;
(g)Expert report of Guy Coffey, including letters of instruction;
(h)Supplementary expert report of Guy Coffey, including letter of instruction;
(i)Risk Assessment Report by Dr Gosia Wojnarowska including letter of instruction;
(j)Second Supplementary expert report of Guy Coffey including letter of instruction;
(k)Bundle of International Health and Medical Services (IHMS) records; and
(l)Material Produced under Summons, including from Corrections Victoria, Victoria Police, and various courts in Victoria.
The IHMS records identified above were obtained by KYMM under the Freedom of Information Act 1982 (Cth). They relate to the period between 2018 up to immediately prior to the hearing, being material not otherwise lodged by the Respondent.
At the hearing the following further material was received into evidence:
(a)Two pages of summons material not lodged by the Respondent from material obtained from Victoria Police, showing charges withdrawn and appeals allowed (Exhibit A1); and
(b)Three pages of summons material from a Magistrates’ Court relating to charges heard in September 2018 (Exhibit A2).
The Respondent lodged a SFIC, Tribunal documents under s 37 of the Administrative Appeals Tribunal Act 1975 (T), redacted Supplementary Tribunal documents (ST), a bundle of material produced under Summons (SM), and the report of Dr Wojnarowska.
At the hearing the following further material was received into evidence:
(a)Two pages of an Incident Detail Report (with redactions) describing an incident in immigration detention on 27 December 2021 (Exhibit R1); and
(b)Email from Dr Wojnarowska, dated 11 July 2022, responding to the second supplementary report of Mr Coffey (Exhibit R2).
Evidence was given at the hearing by the Applicant and their mother, Ms O. The evidence of the medical experts, Mr Coffey and Dr Wojnarowska, was given concurrently.
During the hearing I raised with the parties the question of whether the decision of the Full Court of the Federal Court of Australia in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (Thornton) had any application in this matter. The parties undertook to provide brief written submissions at the close of the hearing, and did so.
There has been some delay in the passage of KYMM’s application through the Tribunal. This arose in part from the Respondent’s request that the Applicant be examined by Dr Wojnarowska. Further, when first listed for hearing in May 2022, an adjournment was granted due to the unavailability of a party’s representative due to illness.
A directions hearing took place on 15 September 2021, following the lodging of SFICs. Here an adjournment, or at least a pause in the proceeding, was discussed and agreed in order to facilitate KYMM’s participation in the examination by Dr Wojnarowska.
On this occasion the Applicant’s representatives also challenged the lodging by the Respondent of redacted material. The redacted material comprises a range of detention records including incident reports, medical records, and other situation and incident reports. The redactions obscure the names of detention staff and other detainees.
It was argued that the inability to identify individuals unduly restricted the Applicant’s capacity to challenge in evidence the contents of records. I determined that the redacted material would be accepted, on the basis that the relevance and weight of the material could be tested at the hearing, and any objections or issues may be addressed in submissions.
LEGISLATION
Pursuant to s 36(1A) of the Act, an applicant for a protection visa must satisfy the criteria in s 36(1C). Subsection 36(1C) states:
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.
‘Particularly serious crime’ is defined in s 5M of the Act as follows:
… 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 …
A ‘serious Australian offence’ is, in turn, defined in s 5 of the Act as follows:
… 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.
A policy document titled ‘Refugee Law Guidelines’ (T3) (the Guidelines) addresses the relevant provisions of the Act (at 14.3). This document notes the adoption in s 36(1C) of the Act of elements of Article 33(2) of the United Nations Convention Relating to the Status of Refugees (the Refugee Convention). The history of the provision was recently described in FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541 (FSKY) (at [60]-[63]) and I note the present formulation was enacted in 2014.
With respect to the first element of s 36(1C)(b), conviction for particularly serious crime, the Guidelines essentially restate the legislation as set out above.
The definition of ‘particularly serious crime’ is inclusive. That is, it may be satisfied by reference to the specific offence types used in the definition of ‘serious Australian offence’. It has been described as a ‘gateway provision’, as opposed to being causally related, to the consideration of the matter of danger (JRJZ and Minister for Home Affairs (Migration) [2018] AATA 3687, at [22]).
With respect to the question of danger to the community, the Guidelines refer to the frequently cited decision of the Tribunal in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (WKCG).
Acknowledging that in WKCG, Tamberlin DP was addressing an earlier form of the provision in question here, the Deputy President identified a number of relevant considerations which include that:
(a)‘… regard must be had to all the circumstances of each individual case’ ([25]);
(b)‘[s]ome relevant considerations include the seriousness and nature of the crimes committed, the length of any sentence imposed, and any mitigating or aggravating circumstances’ ([26]);
(c)‘[t]he criminal record must be looked at as a whole and prospects of rehabilitation assessed’ ([26]);
(d)the reference to ‘danger’ in the Refugee Convention ‘… 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’ ([31]); and
(e)‘[i]n 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 …’ ([31]).
The question of risk was also considered by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18). In his judgment, His Honour observed (at [72]) that ‘danger’ can mean ‘risk’, but that both formal definitions and ordinary experience suggest that ‘danger’ infers ‘a very different and heightened sense of peril’. Logan J concluded (at [83]) that ‘danger’ in s 36(1C) means ‘present and serious risk’.
I consider that the two formulations, ‘real or significant risk’ (WKCG) and ‘present and serious risk’ (DOB18), are materially similar approaches to this factor.
Application of decision in Thornton
The decision in Thornton arose in a different statutory context, being revocation of a mandatory visa cancellation under the Act. The issue in that case was whether account should be had of juvenile offending by the Applicant, where there had been findings of guilt, but no conviction recorded. The relevant statutory context was s 184(2) of the Youth Justice Act 1992 (Qld), which provides that a finding of guilt (against a child) without recording of a conviction ‘is not taken to be a conviction for any purpose’.
In her decision, adopted by the other members of the Full Court, Derrington J found, in short, that the effect of the provision, in conjunction with other relevant statutory provisions, was that the Applicant in that case was ‘taken never to have been found guilty of any offence committed as a child and to prohibit the Minister from taking into account a conviction’ in those circumstances (Thornton at [36]).
The Applicant submitted that they did not seek to rely on Thornton. Rather, following WKCG, it was submitted that consideration of the circumstances of past offending should embrace the relevant statutory context for offending as a child. In short, it is submitted that no adverse weight should be given to any of KYMM’s offending shown as not having attracted any recorded conviction. It is also submitted that a similar approach be taken with offending committed as a child, even where a conviction is recorded.
The Applicant also notes that s 8(2) of the Sentencing Act 1991 (Vic) incorporates virtually identical language to the Queensland legislation arising in Thornton.
The Respondent submitted that Thornton is distinguishable, given its particular statutory context. It is submitted that the Tribunal should take into account the entirety of KYMM’s criminal and general conduct, including findings of guilt where no conviction was recorded (whether as a child or an adult), for the purposes of determining whether the Applicant is a danger to the Australian community.
The Respondent notes, further, that an application for special leave to appeal to the High Court of Australia has been lodged in respect of the Full Court’s decision.
While Thornton remains binding, I consider it prudent to note the specific legislative context (state and federal), and also, to a lesser extent, the pending special leave application. Further, the crux of the submissions here (notwithstanding varying emphasis) is that KYMM’s offending be dealt with consistent with the authorities discussed above. That said, inquiry into their offending necessarily involves comprehending the nature of court outcomes.
ISSUES
It follows from the above that I must give consideration to KYMM’s history of offending, with particular reference to whether they have been convicted of a serious Australian offence.
Following that consideration, the principal issue to be considered is whether I am satisfied that KYMM is a danger to the Australian community.
CRIMINAL OFFENDING
KYMM’s history of criminal convictions is set out in the ‘Check Results Report’ (T6), dated 12 October 2018. The report reveals a total of 23 instances of sentencing between 2011 and 2018, across a large and diverse range of charges. The report is almost evenly split between appearances in children’s courts and magistrates’ courts.
Among the sentencing outcomes, I note that there are seven in which KYMM was sentenced without conviction:
(a)the first recorded charges of assault police (two charges) and offensive behaviour heard in August 2011 are simply recorded as being ‘without conviction’, and a fine was imposed;
(b)a charge of resist police heard in November 2011 was ‘found proved and dismissed’, and a six-month accountable undertaking was imposed;
(c)three groups of driving related charges and a contravention charge were heard in January 2012, and adjourned for 12 months with a good behaviour bond and license cancellation; and
(d)charges of attempt robbery, several dishonesty offences, recklessly cause injury and a contravention charge were heard in February 2013 and a community corrections order was imposed.
There is no entry for the return of the court outcomes adjourned in January 2012, and no further record before February 2013.
In other instances, KYMM was sentenced to terms of detention ranging from one month to 12 months in a Youth Training Centre in November 2011. These outcomes arose from charges for dishonesty, contravention of orders, property damage, resist police, assault and assault police.
KYMM was also sentenced at their final court appearance in September 2018 to an aggregate three months imprisonment for a number of driving offences. On this occasion, a community corrections order was also imposed in respect of charges of hinder emergency worker, property damage, breach and contravention offending, property offences, behave in riotous manner and contravene family violence order.
Exhibits A1 and A2 demonstrate that appeals in respect of findings in a property offence and the family violence order contravention were successful, and the orders of the Magistrates’ Court set aside and/or struck out.
KYMM has also been sentenced to community corrections orders for a range of driving offences, property damage, contravention, dishonesty and assault in August 2013. They received a suspended sentence of nine months imprisonment in September 2014 for charges arising from driving offences, dishonesty, criminal damage, assault, and hinder police.
Finally, KYMM was sentenced to community corrections orders in December 2016 for offending including property offences, dishonesty, breach offending, trafficking cannabis, and assault.
Serious offending
The Respondent’s SFIC points to three specific instances of conviction for offending it submits fall within the definition of ‘particularly serious crime’:
(a)assault police on duty, November 2011, an offence punishable by a maximum penalty of five years imprisonment;
(b)robbery, November 2011 and September 2014, an offence punishable by a maximum penalty of 15 years; and
(c)unlawful assault, August 2013 and December 2016, an offence punishable by a maximum penalty of five years imprisonment.
With respect to the last instances, unlawful assault, the Respondent notes that it is unclear on the evidence whether these charges proceeded as indictable or summary offences and, if the latter is the case, the maximum penalty of 3 months imprisonment applies. The charge arising from offending in August 2013 is described as involving the pushing of a taxi driver (SM2, p 124). The charge arising from offending in December 2016 is described as involving an assault upon KYMM’s sister (SM2, p 165).
The report of KYMM’s convictions (T6) demonstrates that:
(a)in November 2011 the Applicant was sentenced to eight months detention for assault police on duty, and 12 months detention for robbery;
(b)a wholly suspended sentence of nine months was imposed in aggregate in September 2014 for a number of offences, including robbery; and
(c)when sentenced in August 2013 and December 2016, on both occasions for numerous offences including unlawful assault, KYMM received community corrections orders.
Consideration
In representations made to the original decision maker by KYMM’s previous legal advisers it is acknowledged that the Applicant has committed offences in the past which are particularly serious crimes (T21, p 484).
It was submitted at the hearing by the Respondent’s representative that the Applicant did not dispute the commission of particularly serious crimes, pointing to the Applicant’s Reply. The Reply (at [1]), rather, seeks to correct an assumption in the Respondent’s SFIC that the opposite contention had been made.
To be fair to both parties, the focus of both written and oral submissions for the Applicant is on the weight to be attributed to offending in considering the issue of danger to the Australian community.
The instances of serious offending identified as assault police and two instances of robbery were charges brought under the Crimes Act 1958 (Vic), as confirmed by the extracts of court outcomes (SM4, pp 206-208), referring as they do to breaches of Act 6231. Accordingly, they qualify as serious Australian offending under the Act.
The certified extracts of court outcomes for the offending of unlawful assault produced under summons (SM4, pp 209-210) show that these charges were brought under the Summary Offences Act 1966 (Vic), since they refer to breaches of Act 7405.23, being a reference to the charge under s 23 of that Act for unlawful assault.
Accordingly, this offending appears not to fall within the definition of serious Australian offence due to the charges attracting a penalty of only up to 3 months’ imprisonment. In any event, as the definition of particularly serious crime is inclusive, it remains open to consider these instances as satisfying that description.
The weight apparently attributed to these instances of assault (as summary offending) might suggest that the acts in question do not satisfy the statutory test. Further, as will be seen below, KYMM gave evidence in respect of both these instances that challenged aspects of the record.
However, I do not consider it necessary to make a conclusive finding about the status of the unlawful assault charges, as I am satisfied on the material before me that KYMM has been convicted on several occasions of a serious Australian offence.
Accordingly, I find the Applicant has been convicted of a particularly serious crime.
DANGER TO THE AUSTRALIAN COMMUNITY
Evidence
The following is a very brief summary of KYMM’s written statement in which they state:
(a)they grew up without a father figure and had issues with their stepfather and ‘had some issues in the family home’ ([5]-[7]);
(b)they were ‘taken away’ from the family home and started hanging around with ‘other street boys’ who were a negative influence ([9]);
(c)while acknowledging committing ‘a lot’ of crimes, they have difficulty recalling many, and the details of others ([10]);
(d)they committed a robbery at 16 or 17 years of age, were binge drinking at that time and regret their actions ([13]);
(e)a lot of their driving offences were committed when young and immature, and they understand why they were sentenced to incarceration ([14]);
(f)they were involved in a serious car accident in 2013 resulting in loss of consciousness and neck and head injuries ([16]);
(g)they have thought a lot about their past mistakes and realise the consequences ([17]); and
(h)they were initially treated poorly in detention, but now focus on improving themselves and have a plan for the future ([19]-[21]).
KYMM stated in evidence that:
(a)they feel they have grown, really wish to turn their life around and now understand that abuse of alcohol and ‘assaulting randoms’ are not appropriate behaviours;
(b)they feared return to South Sudan;
(c)they want to seek ‘any job’ to keep busy and then find long term employment;
(d)they want to link with South Sudanese community resources and also have someone to talk to about issues that arise, and undertake recreational activities;
(e)they wish to engage with Ms Nathan at Foundation House, and Mr Coffey, and would take advice offered, and they presently speak with Ms Nathan every fortnight;
(f)they have communicated regularly with their brothers and sisters, and would speak to their mother about their problems, unlike when younger;
(g)they understood they have received a diagnosis of a mental health condition, and have taken medicine for two and a half years, stopping recently due to their stress levels; and
(h)would in future drink socially, in moderation, if the opportunity arose.
When asked about specific instances of offending, KYMM stated:
(a)they did not specifically remember spitting at police in 2011, as suggested in summonsed material, however it could have happened;
(b)they could not remember an incident also in 2011 where it is alleged they were involved in kicking and robbing a person, as they were intoxicated ‘most of the time’;
(c)they also could not remember incidents in 2013 and 2014 where it is alleged they pushed persons; and
(d)they denied punching their sister in an incident in 2016, stating that they slapped her in an automatic reaction during an argument.
In cross examination KYMM stated:
(e)that by attacks on ‘randoms’ they meant being in a group and ‘throwing in a punch or kick’, but this did not mean starting something for no reason;
(a)that they acknowledged an employment history (T12, p 391) including four weeks working in a warehouse in 2016, and experience in retail roles when younger;
(b)that they acknowledged their written statement (at [9]) refers to Ms O calling the police after KYMM had a disagreement with their stepfather, explaining the individual was an alcoholic and they did not like seeing Ms O and this individual pass out from drinking;
(c)that this led to a disagreement with Ms O, and KYMM was taken away from the family by DHS, later resettling with her;
(d)they had spent time hanging out with ‘street boys’ and considered they had only drunk to blackout stage a couple of times;
(e)they had difficulty remembering certain offending and were never sure of how many charges they faced in court appearances, and had ordinarily been advised by legal representatives to plead guilty;
(f)that they admitted ‘losing (their) cool’ in detention (in their statement at [19]) and stated ‘no one deserves to be spoken to like that’, in reference to being treated poorly or verbally harassed;
(g)confirmed their intention to live with Ms O and their siblings (their statement at [22]); and
(h)agreed that they had engaged in very limited detox work.
In relation to specific instances of offending, KYMM stated in cross examination:
(a)they denied assaulting their brothers at Ms O’s residence in June 2018 (the Applicant’s representative objected to the supporting material, being a LEAP report at SM2, p 180);
(b)they maintained they had contact with a sister despite Mr Coffey reporting otherwise, stating they previously did not have a phone to facilitate contact;
(c)confirmed their evidence that they hit their sister with the back of their hand, stating the sister struck them first, and denying elements of the circumstances as reported in a LEAP record (SM2, p 165);
(d)they could not remember the circumstances of an incident in November 2013 involving a partner of Ms O described in a LEAP report (SM2, p 168);
(e)that they denied being served with an IVO which appears to have been the subject of a breach offence according to a LEAP record (SM2, p 156), but accepted they had been found carrying certain items that they claimed belonged to someone else;
(f)that they were unable to remember an incident with police at Flinders Street station in November 2010 (SM2, p 147);
(g)recalled an incident on a tram in January 2011 when they had been having an argument with another person that escalated, stating that the police were called and ‘made it worse’ when the Applicant tried to explain the situation, denying that they kicked police (SM2, p 145);
(h)when asked about another incident with police, responded that ‘I don’t think I have ever assaulted police in my life’, and could not remember an incident involving resist police in 2011 (T6, p 312);
(i)similarly stated they had no recollection of incidents of unlawful assault in 2011 or 2013;
(j)denied the offence of trafficking cannabis, for which they were charged in 2016 (T6, 310);
(k)in relation to property damage said to have arisen in incidents at a supermarket and a DHHS office (T23, p 502), acknowledged ‘pushing’ a computer and kicking a door ‘a little’, but otherwise denied intentionally damaging property, stating they were unable to remember the items said to have been stolen at the supermarket;
(l)denied pushing a staff member as described in a record of Corrections Victoria, and when asked about another incident of alleged verbal aggression stated that they had been subject to racist taunts;
(m)acknowledged an incident in immigration detention in which they held a pool ball (ST2, p 348), stating they were in pain at the time, and had been unable to obtain the attention of staff and so started hitting a window, leading to them being restrained;
(n)denied or was unable to recall incidents alleged to involve abuse of staff; and
(o)confirmed they had reported to Mr Coffey being assaulted in a riot in immigration detention, denying that they had themselves participated, despite IHMS material recording they felt forced to participate in the riot (Exhibit R1, p 90).
Ms O confirmed that she had provided a written statement. In this statement, which was prepared on her behalf due to her limited English language ability, Ms O states:
(a)she has seven children including KYMM;
(b)she believes KYMM developed problems at home when younger from witnessing her involvement in a violent relationship ([7]);
(c)KYMM began to experience problems with alcohol and attending school less ([7]);
(d)she called the police on one occasion for support following an incident with KYMM ([14]);
(e)in the past KYMM had been influenced by a bad group of people ([16]);
(f)she has seen KYMM change for the better over the past two years, their communication has improved, and KYMM has a clear plan for the future ([19]-[29]);
(g)she considers KYMM can attend medical services near her home, and Ms O knows two community leaders including Mr Mayar who can assist KYMM ([22]-[23]); and
(h)if released, KYMM will stay at her house with three younger siblings and she can help them secure employment.
Ms O’s evidence in chief at the hearing was broadly consistent with her statement. She reiterated her belief that KYMM had now grown up, and explained her plan for the family to share her three bedroom house. Ms O confirmed that she has known Mr Mayar for over 15 years.
Cross-examination of Ms O proved challenging. As it progressed, Ms O appeared to advance evidence in contradiction to her own statement. Following an adjournment, Ms O became emotional and stated that she was stressed and unsure what to say due to her fear that KYMM would be taken away.
Further material
I was informed at the hearing that Mr Mayar was overseas and therefore unable to give evidence in person. In his statement, Mr Mayar states:
(a)he has spoken with KYMM and Ms O and understands the Applicant’s present circumstances ([2]-[3]);
(b)he is a South Sudanese community leader with experience leading a charity that provides, as a key focus, assistance to young offenders released from detention, and a specialist program to help them secure employment ([4]-[8]);
(c)this support would be suitable for KYMM who has expressed interest in participating, and Mr Mayar himself can also mentor the Applicant ([9]-[11]); and
(d)the organisation can also assist in obtaining stable housing ([13]).
The letter of support from ASRC notes its experience as Australia’s largest aid, health and advocacy organisation. ASRC states that upon release, KYMM will be referred for support and assessment, and will be offered both immediate practical assistance and also medical referrals.
The letter from Foundation House states that KYMM first engaged with the organisation from 2007-2009. It states KYMM reengaged in late 2021 and has had regular counselling sessions since then. Ms Nathan from Foundation House would collaborate with KYMM on release to monitor their mental health and assist with social support and medical referrals.
I note that the court extracts produced under summons include two references (SM4, p 206 and 207) that indicate that in sentencing, a magistrate has relied upon what appears to be a professional opinion, possibly a medical report:
REPORT FROM ELIZABETH WARREN DATED 19TH OCTOBER 2011 IS IMPORTANT. DIAGNOSED GENERAL ANXIETY DISORDER AND INSIGHTS FOR MANAGEMENT. SIGNIFICANT ALCOHOL ABUSE MANY YEARS EVEN THOUGH 18. ALL CARE AND ASSISTANCE TO BE GIVEN AS JUST 18 YEARS.
As noted above, these extracts relate to sentencing for KYMM’s more serious offending (assault police on duty and robbery) committed in 2011. There appears to be no other reference to this diagnosis or Ms Warren in the body of material in this matter.
Finally, I note a Northern Health record among the material produced by IHMS (ST4, p 478) observes that in 2011, KYMM was released on parole from youth detention after serving nine months, going on to breach parole.
Expert evidence
In her report and oral evidence at the hearing, Dr Wojnarowska confirmed that she concurs with the opinion and recommendations of Mr Coffey’s first report. I note that in her supplementary email (Exhibit R2), she does not change her opinion.
Mr Coffey’s first report provides a very comprehensive background addressing KYMM’s life and circumstances. These include a traumatic infancy in South Sudan and a difficult transition into Australian society. Mr Coffey records quite substantial disruption in the family setting, including conflict and periods of out of home care, and life in public housing after release from youth detention. KYMM’s history of polysubtance abuse and criminality is also set out.
With respect to KYMM’s mental health, Mr Coffey states the Applicant’s developmental history is ‘likely to have produced unstable mood, identity confusion, and emotional dysregulation’ ([34]). He also notes that from 2017, and possibly earlier, KYMM experienced incidents of paranoia and also hearing voices ([35], [36]). KYMM also reported feelings of persecution when in prison, and was noted in immigration detention to be experiencing paranoid delusions ([42], [43]).
Mr Coffey states that KYMM was admitted for treatment under an Order of the Mental Health Act2014 (Vic) (MH Act) in early 2020, where they were prescribed anti-psychotic medication, and lacked insight into their condition at the time ([44]). Later evaluation showed no relapse of psychotic symptoms, normal mood, and adherence to prescribed treatment, albeit KYMM wished to cease treatment ([46]).
Mr Coffey reports KYMM received ‘about a month’ of counselling upon release from remand in 2018, but otherwise identifies no prior mental health treatment ([57], [58]). The Applicant was admitted a second time in 2020 for psychiatric treatment and their condition stabilised over the nine months prior to the consultation with Mr Coffey ([60]-[62]). During the consultation, KYMM denied suffering a psychotic illness, but felt better than they did previously, stating ‘the medication could have helped’ ([91]).
The formal diagnosis rendered by Mr Coffey is Schizophrenia, with residual psychotic symptoms, some ongoing impact on emotion and mood due to childhood experiences, and Alcohol Use Disorder ([93]). Mr Coffey considered KYMM’s background and circumstances to be the principal cause of their offending ([97]). He also observed that the Applicant ‘did not condone or valorize violence or unlawfulness’ ([98]). KYMM’s expression of regret for offending was considered to be sincere, but Mr Coffey nonetheless expressed doubt about how thoroughly KYMM has thought through their remorse ([99]).
Mr Coffey considered risk factors associated with general recidivism and came to the opinion that ([100]-[101]):
… there is at least some likelihood that [KYMM] will continue to demonstrate the same pattern of offending upon [their] release into the community unless [they] receive[s] a comprehensive program of treatment and rehabilitation whereby criminogenic risk factors are mitigated or eliminated.
Mr Coffey identifies that such a program would consist of a range of multidisciplinary health, therapeutic, social service, and vocational training supports in addition to mentoring and stable living arrangements ([102]).
In his second report, Mr Coffey expresses the view that KYMM’s continuing engagement with treatment underscores the feasibility of the recommended program ([69]). In his third report Mr Coffey states that prolonged detention is actively impeding rehabilitation ([39]).
Dr Wojnarowska’s report describes her detailed considerations in the application of a formal risk assessment instrument, HCR-20. Mr Coffey acknowledged in evidence that his report was informed by the same qualitative analysis. Dr Wojnarowksa also makes a formal diagnosis of ‘Schizophrenia characterised by persecutory delusions and limited insight’ ([29]). She also states that KYMM fulfils the diagnostic criteria for Antisocial Personality Disorder and Substance Use Disorder ([30]-[31]).
Dr Wojnarowska also states that KYMM requires ‘assertive’ follow up from community mental health services under a MH Act treatment order and possibly with ‘depot’ injection of medication ([89]). Without assertive case management, she considers KYMM’s mental state is likely to deteriorate rapidly.
With respect to risk, Dr Wojnarowska states ([89]):
(a)KYMM’s ‘most serious incident of violence was driven by [their] impulsivity, intoxication and paranoid ideations’;
(b)that KYMM has over the years ‘continued to display strong antisocial behaviours’;
(c)KYMM did not demonstrate strong antisocial attitudes during examination, however has ‘poor insight and understanding of [their] mental illness’ likely related to their cultural background or education; and
(d)KYMM’s risk of future violence is in the moderate range.
At the hearing Dr Wojnarowksa observed that she was based in Western Australia and that her views with respect to the role of a health treatment order were made in the context of services in that State. She added that this reference in her report was ‘not crucial’.
Mr Coffey stated that he considered KYMM would indeed receive assertive follow up through local area mental health services, and treatment under an order may arise in the case of relapse. He described area mental health services as being a comprehensive, team-based approach to treatment. Mr Coffey acknowledged that transition from immigration detention was not always ideal. He also stated that the plan for KYMM to reside with Ms O needed consideration.
Dr Wojnarowska agreed that despite stressors KYMM may experience if released, they would be able to remain stable and responsive to treatment. Later in evidence Mr Coffey emphasised that present non-compliance with the regime of medication may be associated with a loss of hope, as opposed to a general attitude of non-compliance with treatment recommendations. I noted at this point in the hearing that KYMM had in fact given this evidence about a loss of hope for the future.
When asked how long she considered KYMM may have had schizophrenia, Dr Wojnarowska stated that symptoms most commonly first appear in late adolescence or early adulthood. It was very possible that the Applicant had self-medicated via illicit substances and this was a ‘very reasonable conclusion and a usual scenario’. She acknowledged it was difficult to determine the presence of the major mental illness of anti-social personality disorder retrospectively.
Mr Coffey agreed with the diagnosis of anti-social personality disorder, noting that it was very common among individuals sharing a similar refugee background. He also stated that the nature of some of KYMM’s reported behaviour with their social circumstances, at least from 2017, pointed to untreated psychosis over several years.
In response to a question from myself about risk, Mr Coffey stated that the primary objective of the qualitative assessment he undertook is to quantify the extent of interventions needed to mitigate risk. He specifically agreed with Dr Wojnarowska’s opinion about a moderate risk of reoffending, and that to mitigate in this context meant taking active steps to reduce the risk. That is, without support there was a moderate risk, and in this scenario it can be significantly reduced with the recommended program. He also confirmed the inclusion of a note in his first report (at [99], note 42) that absence of remorse is not a risk factor in and of itself.
Dr Wojnarowska stressed in her evidence the importance of stability in accommodation, stating that according to the research, a lack of stable accommodation is a main causal factor for relapse in major mental illness.
Submissions
At the commencement of the hearing, KYMM’s representative duly pressed the objection in respect of ST documents (being specific items among the broad categories of detention material set out above), and to all of the material produced under Summons. This material comprises records from: Corrections Victoria; Victoria Police LEAP records; and, two separate files of Victorian courts consisting almost entirely of Court Orders.
Reliance here was placed on Australian Postal Commission v Hayes and Another [1989] FCA 176 (Hayes) for the proposition that the right to cross examine means the right to effectively cross examine (at [19]). The Applicant’s representative pointed to his inability to call the makers of records or statements in summonsed material for cross-examination, such as police or corrections officers.
For the Applicant it was submitted in closing at the hearing that KYMM’s evidence with respect to insight and plans for the future was fluent, coherent and spontaneous. It was also submitted that despite inconsistencies in Ms O’s evidence, her offer of accommodation and willingness to offer support to KYMM was important.
It was contended that the expert evidence was unanimous that KYMM has good prospects if they engage with professional assistance as outlined, and that the Applicant is likely to do so. The supports are documented in the material submitted by ASRC, Foundation House and Mr Mayar.
Objections to material before the Tribunal were again pressed in closing, with the Applicant’s representative questioning whether the Tribunal was in a position to accept what is asserted in documents as true. It was contended nil weight should be given to some evidence of offending, given that material produced by the Respondent demonstrated that some charges had not proceeded. It was also submitted that little weight should be given to KYMM’s wider criminal record, as it involved offending that was not particularly serious.
In respect to the instances of serious offending relied upon by the Respondent, it was contended that:
(a)KYMM was unable to remember spitting at a police officer and, in any event this did not amount to a crime of violence;
(b)the Respondent’s SFIC itself identifies that the circumstances of the 2011 robbery involving a physical attack on the victim are unclear (at [24]), and it cannot be definitively determined that KYMM was responsible;
(c)the robbery in 2013 was committed in company, raising again the question of the Applicant’s role, and the incident allegedly involved only a push;
(d)the unlawful assault in 2013 was committed when KYMM was a child and again involved a push only; and
(e)the unlawful assault in 2016 involving KYMM’s sister was six years ago, and the Applicant denied punching her, but did not prevaricate about slapping her.
Concerning risk, it was contended that Dr Wojnarowska explained KYMM’s offending as causally related to their experiences at that time, and Mr Coffey addressed comprehensively the link between context and behaviour. It was submitted that past offending should be understood in its context and weighed accordingly. It was further submitted that the nature of past offending did not raise to an appropriate level of seriousness. The threshold for risk, it was contended, is a high level of risk (citing DOB18).
The Applicant’s representative also cited QGMJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2314. This mandatory visa cancellation decision was identified as a matter in which the Tribunal had regard to a diagnosis of schizophrenia informing the context of offending, and a program of supports in the community mitigating relapse.
Submissions went on to address at some length the evidence given as to the nature and intent of the network of proposed supports that can be anticipated as coming into play in KYMM’s case. It was contended that, even in the case of relapse, these supports suggest that the automatic result is not further criminal conduct.
For the Respondent, it was acknowledged that the Applicant’s representatives had correctly identified in the summonsed material information demonstrating that convictions had been successfully appealed.
The Respondent pressed its contention, noted above in the summary of submissions on Thornton, that consideration should be given to all of KYMM’s conduct and entire criminal history. This was consistent, it was put, with the approach identified in WKCG. It was submitted that proof of convictions carries greater weight than LEAP records, for example, but that the summonsed material also carries weight.
Accordingly, the Respondent relied upon the summary of assault and property charges identified in its SFIC (at [45]), which (it was submitted) demonstrate that KYMM is a violent person. It was noted that KYMM’s record comprises some 90 offences over a seven-year period. The Respondent submitted that the evidence of a history of violent offending meant that KYMM was a danger because of the high risk this posed. It was submitted that the evidence indicates that in the controlled environment of immigration detention, KYMM has acted aggressively, violently and fails to take responsibility for this. Specifically, it was contended the Applicant:
(a)denied assaulting police despite convictions for such conduct;
(b)attributed assaults on ‘randoms’ to a group;
(c)placed responsibility for the assault of their sister on her striking first;
(d)denied assaulting their brothers, contradicted by the LEAP record;
(e)an IVO was successfully appealed, but was nonetheless instituted;
(f)minimised the instances of property damage in the supermarket and DHHS office;
(g)disregarded authority through unlicensed driving, blatantly disregarding advice that they should not drive; and
(h)the expert evidence indicates a moderate risk and the information before the Tribunal indicates they cannot be relied upon to engage with supports.
It was submitted that the evidence about accommodation with Ms O and the poor quality of her own evidence indicates that a conservative interpretation should be taken of her capacity to assist. It was also submitted that other planned supports were problematic, and that Ms Nathan was not called to give evidence nor was there firm evidence about how much assistance she has provided to date. Conversely, the Respondent then referred to Mr Coffey’s contact with Ms Nathan (in his second report at [13]) where he records Ms Nathan’s view that KYMM will ‘need considerable support in the community’. (This paragraph also records five sessions being held as at the date of the report).
It was contended that Mr Mayar’s letter of support was generic, and that engagement with supports in the community lay in KYMM’s hands, and their history was of drug and alcohol abuse and non-compliance with treatment. Finally, it was submitted that pro-social supports are an important element of rehabilitation and that no evidence was given by any friend or family member other than Ms O.
The Applicant’s representative submitted in reply that: KYMM gave evidence about ongoing social and family contact; expert evidence was to the effect they will engage with supports; historic family instability did not affect the significance of interim accommodation upon release; and the evidence given described the usual manner of engagement with mental health and social services.
Consideration
It falls from the discussion of the Act and authorities above that there are, broadly, two inquiries arising in reaching a state of reasonable satisfaction that KYMM is a danger to the Australian community. They are, to come to an understanding of the seriousness and nature of KYMM’s offending, and to determine whether KYMM presents a real, significant or substantial risk to the Australian community.
The parties clearly differ on the range of conduct that should be embraced by these inquiries. This difference is driven by the Applicant’s objections to the summonsed material.
The material objected to is already formally before the Tribunal. On balance, I consider that the approach taken of giving parties the opportunity to test evidence about specific incidents permits the Tribunal to inform itself about relevant evidence, and to determine what is most probative.
In this case, KYMM’s evidence often demonstrated limited recall, due to factors including the passage of time, confusion due to the sheer range of offending, and the impact of intoxication while offending. On the one hand, this could render procedural fairness for such an Applicant moot. On the other, having such information as is available assists in the broad inquiry about offending history.
I accept that Hayes stands as a reminder of the potentially negative impact of procedural rulings in a Tribunal, and that the decision also identifies the balance between openness in Tribunal proceedings and procedural fairness (at [26]-[27]). However, I take note also of authorities that indicate that in appropriate circumstances, the more complete form of procedural fairness argued for on the Applicant’s behalf is not a requirement of Tribunal proceedings (QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82; Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106).
It may be the ideal situation that parties be able to cross-examine the makers of statements included in summonsed material. This would, however, likely place an almost insurmountable burden on a Respondent were this the norm. The Applicant has in this case had a significant amount of time to consider information contained in summonsed material. As seen, the material includes evidence of successful appeals and the only documented information about KYMM’s earlier mental health history (paragraph [67] of these reasons).
I also note that in this matter, the material lodged with the Tribunal includes (with the minor exception of the last item set out immediately above) no sentencing remarks for any instance of offending (quite probably due to the procedure adopted for most if not all of the offending). Such material is ordinarily available, and usually a critical source of evidence. This adds further weight to the benefit of having more, rather than less, material available for consideration.
Finally, immigration detention records provide the only source of information about an Applicant’s recent or present conduct, outside of their own evidence. Making a decision as to whether a person is a danger to the Australian community inherently requires some evaluation of their present state of mind and conduct. Inevitably, the written record of a person’s detention is a valuable source. Furthermore, the Applicant has themself relied upon IHMS records throughout the course of the hearing.
Recourse is not needed to a wider body of material to appreciate that KYMM has, in the words of Mr Coffey at the hearing, committed a ‘catalogue of offences’. Among them must be noted the instances of more serious offending.
The Respondent, I consider, is correct to characterise KYMM’s evidence as seeking to minimise the nature and extent of their conduct. This was a persistent theme in relation to acts of violence involving both persons and property. Through their evidence, KYMM deployed justificatory and victim narratives by which they sought to deflect responsibility to other persons, including their own sister. This approach was taken not only to historic offending, but also to conduct in immigration detention.
This evidence does no credit to the Applicant at all as it shows limited insight, despite the reports of remorse found elsewhere in the material before me. It tends, in fact, to throw some doubt on whether KYMM comprehends the impact of their behaviour and the approbation that repeated criminal offending rightly deserves. I will address this further when considering risk of reoffending.
To return to the nature of the offending, I consider that overall KYMM’s offending has the character of what might be described as street or petty crime, noting of course the concession made by the Applicant’s representatives as to more serious instances involving acts of violence. This does not rob KYMM’s extensive record of weight. It is a substantial and long record. I do not consider, though, that the accumulation alone of such a record thereby necessarily adds weight to its seriousness in the context of determining the question of danger.
Accepting, as I have, that there are instances of more serious offending, the sentences imposed are clearly at the lower end of the range for such offences. There are also numerous instances of non-custodial sentences, indeed such penalties were imposed even following KYMM’s initial period of youth detention.
I noted above, further, the substantial number of findings of guilt with no conviction recorded, and this includes offending as an adult. There is a Janus-like quality to this conduct. It is not possible to exclude entirely knowledge of the underlying conduct, as this sentencing outcome itself explicitly involves a finding of guilt. At the same time, it is self-evidently a result in the hierarchy of responses that is at the lowest end of the spectrum.
There are a number of critical observations to be made about the circumstances of KYMM’s offending. First, approximately half of the recorded offending occurred prior to the age of 18, including that offending attracting multiple sentences to youth detention up to and including 12 months (the most substantial individual sentencing outcome across the record). As I have noted, there is information contained in the IHMS records indicating that KYMM was released from youth detention on probation. In addition, the evidence indicates that the offending leading to periods of imprisonment (in youth detention and prison) were both attended by either or both mental health and substance abuse issues.
I would also add that youth detention itself is a discretionary sentencing outcome and I note the submissions made to the original decision maker on this issue (T21, p 483).
Second, the offending as a minor, and indeed the majority of all offending, must be seen in the context of substantial personal and family dysfunction. These contributing factors were established as important context in the evidence of the expert witnesses at hearing.
Third, the expert evidence in this matter has also addressed thoroughly and, I consider conclusively, the role of mental health issues in KYMM’s life. I accept the evidence given that it is highly likely that the Applicant had undiagnosed mental health issues before formal diagnosis, and that schizophrenia typically develops in adolescence and early adulthood. This potentially embraces KYMM’s entire history of offending. This conclusion is reinforced by the record of sentencing in 2011 being informed by a diagnosis of a mental health condition.
Some only of the specific incidents raised about KYMM’s conduct in prison or immigration detention by the Respondent (in their SFIC at [67]-[71]) were addressed directly in evidence at the hearing. As to the incidents in prison, the experience in the gym was explained by KYMM as being a result of not being treated well. All of the incidents appear to relate to bad attitude and language, and to relatively minor behavioural problems. Perhaps more pertinently, I note from both Mr Coffey’s first report and the medical and detention material to which he refers (for example ST4, pp 381-384, p 433) that these incidents seem to coincide with the early detection and treatment of patent mental health issues.
Similarly, one of the issues of problematic conduct in detention (involving a pool ball) was addressed in evidence and, to an extent, explained by KYMM as arising from their medical situation at the time, albeit relating to their physical condition on that occasion. These and several other alleged incidents are also proximate in time to the early formal treatment for KYMM’s schizophrenia. Equally, these and later episodes all appear to involve – again – bad attitude and/or bad language on the part of the Applicant. In addition, the material received during the hearing about a riot in immigration detention (Exhibit R1) is at best equivocal about any role played by KYMM.
On balance, I am not satisfied that this evidence of apparent persistent conduct issues, particularly when taken together with the medical evidence, raises any issues of sufficient substance that merit great weight in considering the question of danger. I note also that KYMM’s more recent conduct formed part of the expert evaluation.
The expert evidence was consistent and largely unequivocal that KYMM presents a moderate risk of future general offending, and that this level of risk is expected to be mitigated (reduced to a lower level) by a comprehensive program of supports. I accept this evidence.
I also accept, however, that there are important contingencies. KYMM must voluntarily participate in a potentially complex range of engagements. The Applicant chose recently to interrupt the regime of medication, and has an extremely limited record of prior experience of therapeutic help. This, together with limited insight into their mental health situation, raises some real concern about the success of such a critical program.
Uncertainties over accommodation and the relatively broadly stated intentions of several relevant organisations, including that of Mr Mayar (all relatively recent arrivals in KYMM’s life) add to the potential fragility of the Applicant’s circumstances if released.
This fragility should not be understated. Equally, it must also be understood as a direct consequence not of the mindset of an intransigent habitual criminal, but as conditions and contingencies inherent to KYMM suffering a serious mental illness.
Finally, I noted above the somewhat justificatory element to the Applicant’s evidence. I have also noted, however, Mr Coffey’s professional judgment about KYMM’s attitude to offending (at [99]). This includes the observation that a psychotic illness may interfere with this factor, namely, a lack of insight, and that lack of remorse is not an accepted risk factor.
In conclusion, I accept the central thrust of the contentions advanced for the Applicant. I find that KYMM should not be considered a danger to the Australian community because: they will continue to receive appropriate treatment and support for their mental health condition; this assistance will, on the expert evidence, satisfactorily moderate the medium level risk they otherwise present; and, the seriousness and nature of their offending, or other more recent conduct, suggests that even the unmitigated risk does not rise to the level required, being a real or significant risk.
DECISION
For the reasons given above the Tribunal sets aside the decision of the delegate of the Respondent dated 3 May 2021 to refuse to grant a protection visa and remits it for reconsideration in accordance with the direction that the Applicant is not a danger to the Australian community.
I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
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Associate
Dated: 29 July 2022
Date of hearing: 12 and 13 July 2022 Counsel for the Applicant: Min Guo Solicitors for the Applicant:
Advocate for the Respondent:
Holding Redlich
Tal Aviram
Solicitors for the Respondent: Clayton Utz
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