LPSP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3671
•9 November 2023
LPSP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3671 (9 November 2023)
Division:GENERAL DIVISION
File Number(s): 2021/0442
Re:LPSP
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:9 November 2023
Place:Melbourne
The Tribunal sets aside the reviewable decision dated 20 January 2021 and remits it for reconsideration in accordance with the direction that the Applicant is not a danger to the Australian community.
.........................[SGD].......................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – refusal to grant protection visa – whether convicted by final judgment of particularly serious crime – whether a danger to the Australian community – seriousness and nature of offending – risk of reoffending – period of time in community during the proceeding – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Cases
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84
FSKY v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCAFC 2
Minister for Immigration, Citizenship and Multicultural Services v LPSP [2023] FCAFC 24
Pearson v Minister for Home Affairs [2022] FCAFC 203WKCG and Minister for Immigration and Citizenship [2009] AATA 512
Secondary Materials
Convention relating to the Status of Refugees, Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
9 November 2023
BACKGROUND
LPSP applied on 25 January 2021 for review of a decision by a delegate of the Minister for Home Affairs on 20 January 2021 that he did not satisfy the criterion for a protection visa under s 36(1C)(b) of the Migration Act 1958 (Cth) (the Act).
The Applicant had applied in November 2019 for a protection visa, which was denied by a decision in January 2020. In August 2020, the Migration and Refugee Division of the Tribunal determined that LPSP was entitled to protection obligations under s 36(2)(a) of the Act.
In the decision under review here, however, it was determined that LPSP had been convicted by final judgment of a particularly serious crime and is a danger to the community. Under s 36(1C)(b) of the Act, this is a disqualifying criteria for the grant of a protection visa.
LPSP is aged in his early 30’s and was born in what is now South Sudan, arriving in Australia at the age of 12. He had previously lived for a number of years in a refugee camp in Kenya. The Applicant originally lived with an older sister in State 1, but joined his mother and other siblings in State 2 when they arrived in Australia approximately five years after him. LPSP has two children to a former partner who all live in State 2.
The Applicant was represented before the Tribunal and among other material lodged the following:
(a)a Statement of Facts, Issues and Contentions (SFIC) and Revised SFIC;
(b)Reply to the Respondent SFIC;
(c)a Tender Bundle (86 pages);
(d)a supplementary report by Dr Nina Zimmerman, forensic psychiatrist, dated 6 June 2021;
(e)Applicant statement, with attachments;
(f)Revised SFIC, lodged 13 June 2023; and
(g)Supplementary Tender Bundle (STB).
The Respondent lodged:
(a)documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) (T), numbered T1-T28;
(b)Supplementary and Further Supplementary T documents (ST), numbered ST1-ST11;
(c)a Bundle of Documents for the hearing (BD), numbered BD1-21.
Evidence was given at the hearing by: LPSP; Mr A, an African community leader; BP, a parish priest; Ms G, the Applicant’s niece; Mr M, the Applicant’s cousin; Mrs R, the Applicant’s mother; Ms B, the Applicant’s partner; and, Dr Zimmerman. Interpretation in the Dinka language was arranged for the evidence of Mrs R.
Procedural history
This matter has a lengthy procedural history. I also note that the Applicant had his original visa mandatorily cancelled under s 501(3A) of the Act in late 2016. This led to a series of decisions in the Tribunal and in the Federal Court of Australia between 2018 and 2020.
This application was originally listed for hearing in June 2021. The Supplementary report of Dr Zimmerman was provided shortly before the hearing, prompting a request by the Respondent that LPSP attend upon a psychiatrist of its choosing for the purposes of preparing a further expert report. The Applicant declined, and the Respondent sought from me a Direction that LPSP attend an appointment arranged for this purpose. I made a Direction to this effect under s 33 of the AAT Act.
This Direction was appealed. It was ultimately held by the Full Court of the Federal Court in March 2023 that in the absence of clear legislative authorisation, s 33 of the AAT Act could not be construed as conferring the power to direct a medical examination against a person’s will (Minister for Immigration, Citizenship and Multicultural Services v LPSP [2023] FCAFC 24).
While the appeal was still on foot, LPSP was released into the community in December 2022, having had his visa reinstated following the decision in Pearson v Minister for Home Affairs [2022] FCAFC 203. The effect of this decision was reversed through legislation, permitting LPSP to be once again taken into immigration detention in April 2023. In addition, LPSP was arrested in February 2023 and sentenced to a short time in prison in respect of outstanding warrants.[1]
[1] Applicant Revised SFIC [14]-17].
Prior to the hearing the Applicant’s representative requested that the Respondent arrange for LPSP to appear in person. This request may have arisen in part due to the Tribunal listing the hearing in error as an in-person event. Prior to this point, the Tribunal’s records indicated that LPSP was detained in State 3, when in fact he was detained in State 1. Indeed, the Applicant was in State 3 when released as noted above, and elected to travel to State 1 to stay with family.
The Respondent indicated that it was unable to arrange the transfer of the Applicant for the purposes of the hearing. Having also been informed at a telephone directions hearing that LPSP’s legal representatives and most witnesses were available to attend in person, I determined that the matter should proceed as a ‘hybrid’ event. Accordingly, LPSP attended via video, as did counsel for the Respondent.
Finally, I note objections were raised at the hearing by the Applicant’s representative both to the mode of hearing, and to reliance upon certain material lodged by the Respondent. The common basis of the objections to documents was the absence for the purposes of cross-examination of the makers of statements, being: the report of Dr David Ball, forensic psychologist, in respect of his assessment of the Applicant in 2011 (ST1); material obtained under summons from police and courts (ST7); and, immigration detention incident reports (ST8). The age of some of the material was also said to reduce its relevance.
The Respondent submitted that only limited reliance would be placed on Dr Ball’s report, that the age of material did not necessarily determine its relevance in the context of the statutory question being considered, and that the issue was rather what weight to afford specific items. I determined that the better approach was to carefully consider the weight to be attributed to any particular record, and particularly those upon which some reliance might be placed by the Respondent, with a view to affording both parties procedural fairness.
LEGISLATION
As noted, s 36(1C)(b) of the Act provides as follows:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
…
(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. Thus, the term includes reference to a crime that consists of the commission of ‘a serious Australian offence’. This term, in turn, is defined in s 5, relevantly, as:
… an offence against a law in force in Australia, where:
(a) The offence:
i.Involves violence against a person
…
I note that s 36(1C) codifies in Australian law a provision of the United Nations Convention Relating to the Status of Refugees[2] which provides for an exception to the principle of non-refoulement that would otherwise apply to a person who is owed protection obligations.[3] Assessment of whether a person can be considered a danger to the Australian community has recently been described as ‘multifactorial’ (FSKY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCAFC 2 (FSKY), [59]). This observation essentially flows from the range of factors identified as comprising some of the relevant considerations in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (WKCG), [26]).
[2] Opened for signature 28 July 1951,189 UNTS 137 (entered into force 22 April 1954)
[3] Respondent Revised SFIC [13]-[14].
These specific factors are, in summary: the seriousness and nature of crimes committed; the length of the sentence imposed; any mitigating or aggravating circumstances; the risk of re-offending and recidivism; and prospects of rehabilitation. I note further that in WKCG it was said that ‘the likelihood of relapsing into crime is a primary consideration’, and that assessment of future conduct ‘involves a consideration of character’ [26].
With respect to the concept of danger itself, it was also said in WKCG that ‘it is sufficient if there is a real or significant risk or possibility of harm’ and it is not necessary that there be a ‘real and immediate danger of present harm’ [31]. This approach was recently considered in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 (DMQ20). In his reasons, Rares J found that it accorded with international authority [18], and that there is international consensus that danger connotes a threat or risk of a substantial kind [44]. The plurality found that the statutory context (expressing a convention obligation) meant that the intention of Parliament was to denote harm of a non-trivial kind, which they described as a ‘prospect (however measured) of injury (at the least), most likely of physical or psychological kinds’ [111].
The question of the assessment of such prospects has also been addressed in both FSKY and DMQ20. In the former, it was said that ‘to isolate the bare probabilities of recidivism as constituting the relevant inquiry demanded by s 36(1C) would constitute an error’ [60]. In the latter, all members of the Full Court considered that evaluation of danger involves the assessment of probability of harm and also the severity of its consequences [53], [107].
ISSUES
There are two specific issues identified for consideration in s 36(1C)(b), being conviction by final judgment of a particularly serious crime, and danger.
There is no dispute in this matter that due to the nature of LPSP’s past offending, he satisfies the first element.[4] I have considered the Applicant’s National Police Certificate (BD12) which discloses multiple convictions for offences of violence for which the specified period of maximum imprisonment meets or exceeds the thresholds identified in the Act, as noted below.
[4] Applicant’s Revised SFIC [46]; Respondent’s Revised SFIC [2].
In approaching consideration of the second element, danger, I will adopt a simplified structure dealing with two main categories of issue, being the seriousness and nature of the crimes committed, and the risk of reoffending, but incorporating the wider range of factors identified in WKCG.
SERIOUSNESS AND NATURE OF CRIMES COMMITTED
Consideration of LPSP’s offending record reveals in excess of 80 convictions over 18 court appearances between 2009 and 2016, primarily at the magistrates court level. Charges have been presented in three different Australian states. Categorised broadly, the offending comprises: over 20 convictions for violence; over 25 convictions for conduct offences, including numerous instances of disorderly conduct against emergency workers; over 15 convictions for different contraventions or breaches of existing orders; 5 family violence offences; and, 12 dishonesty offences, including theft. The Respondent’s Revised SFIC identifies maximum penalties applicable to the violence and family violence offending, and this ranges from three to 15 years’ imprisonment [3].
LPSP has received sentencing outcomes across a wide spectrum. There are instances in which no conviction was recorded, and some instances of conviction and discharge. LPSP received a community corrections order on one occasion. The Applicant has had fines applied to his offending on a number of occasions up to and including the sum of $1,200.
LPSP has also been sentenced to numerous terms of imprisonment. At his court appearance in late 2016 he was sentenced to a total effective sentence of one year and three months, with one of the constituent terms being 12 months, part concurrently. LPSP was also sentenced to a total effective term of 15 months in 2012. He has been sentenced on numerous occasions to shorter individual terms numbering in months and days. Sentences of imprisonment were suspended on at least four occasions.
I summarise briefly from transcripts of several court appearances included in the material (T13):
(a)in 2011, a magistrate in State 1 identified LPSP’s offending as involving a pattern of intoxication, and the assaults being dealt with involved disorderly and aggressive conduct in a group;
(b)in 2016, a magistrate in State 2 described LPSP’s repeat offending against his former partner and two children, who were present at the time, as ‘terrifying’, noting that he was very drunk at the time; and
(c)again in 2016, a second magistrate in State 2 advised LPSP to find other ways to deal with conflict when considering several offences of violence, including against a bus driver and a prison officer, all of which were described as serious.
The role of alcohol in these offences was acknowledged by the respective sentencing magistrates, as were LPSP’s pleas of guilty, and his personal history of trauma and the difficulty he experienced coping with stress.
A long history of drug and alcohol use commencing at around the age of 13 is documented in several places, specifically the report of Dr Ball (ST1, 835), who diagnosed a condition of substance (cannabis) dependence condition in early full remission. A similar history is given in Dr Zimmerman’s first report, dated 23 June 2020 (T27, [46]-[49]). Dr Zimmerman also records LPSP being given ‘arak’ as a young child in the refugee camp. This was also the evidence given by the Applicant himself and he further stated that he was given ‘home brew’ to drink by his family after moving to Australia, to deal with nightmares. Dr Zimmerman also records a series of treatment and rehabilitation programs undertaken by LPSP between 2010 and 2018 (T27, [51]-[58]). She diagnosed alcohol dependence disorder currently in remission (ST27, [107]).
Dr Zimmerman records a psychiatric history related to trauma experienced in Africa including nightmares, flashbacks, anxiety, and a period of use of antidepressant medication (ST 27, [36]-[45]). She also records here a history of treatment and some counselling including in 2005-2007 and 2017, in prison. Dr Zimmerman diagnosed Post-Traumatic Stress Disorder (PTSD), in partial remission (ST27, [108]).
In his most recent statement, dated 13 June 2023 (BD7), LPSP states that he experienced interrupted schooling in Australia as a result of what he has come to understand now as anxiety and PTSD [5]. He further elaborated in his evidence upon moving schools at both primary and secondary levels. LPSP also gave evidence about living away from home to attend school and in his statement, states that his early criminal offending as well as his drug and alcohol addiction emerged at this time [8]. In an earlier statement, dated 4 November 2020 (T27), LPSP acknowledges that he behaved ‘very poorly when I was drunk’ and claims that he never hurt his family when sober [23]-[24].
In his evidence, LPSP expressed regret for his offending, stating that this is ‘not who I am now’. He expressed shame about his assaults on family members and acknowledged that he has hurt a lot of people.
Submissions
The Applicant’s Revised SFIC acknowledges a number of the more serious instances of LPSP’s offending, while describing much of his offending as minor [27]. It is submitted for the Applicant that his past offending was largely a result of alcohol and drug use, and that he has a long history of relying upon alcohol in the context of trauma and the resulting PTSD [67].
At the hearing, the Applicant’s representative submitted that LPSP’s developmental context was unchallenged by other evidence. It was also submitted that LPSP’s mental health condition was not diagnosed or managed until 2016, being after his offending ceased. In support, reference was made to aspects of mental health raised personally by the Applicant (BD15, 869, 954).
The Respondent’s Revised SFIC characterises LPSP’s violent offending in a group and against his former partner as being of a ‘predatory’ nature [37]. It is submitted that it continued despite therapeutic intervention, and increased over time, and has involved a willingness to contravene family violence orders and bail and probation conditions [38], [64]. Indeed, the Respondent contends that there is little by way of mitigating factors [47]. Written submissions also identify a number of aggravating factors to LPSP’s offending, comprising essentially the nature of the offending, as already noted [53].
At the hearing, the Respondent’s representative submitted that LPSP’s history of offending remained a relevant consideration. It was also contended that the range of sentencing options pursued, including incarceration, had not been sufficient incentive for LPSP to improve his behaviour during his period of offending.
Consideration
I consider LPSP’s offending history to be sustained, and the prevalence of violent offending, including against vulnerable members of the community and individuals performing various public roles, to be a matter of serious concern.
It is, however, clear that there are important mitigating circumstances. These were identified by sentencing magistrates, and I have set out evidence including clinical material that substantiates the personal dysfunction behind LPSP’s offending. Further, while there are repeat sentences of imprisonment, overall the material demonstrates that terms imposed have regularly been at the lower end of the available maximums.
LPSP has a long track record of persistent criminality. Both parties recognise that much of the offending is at the lower end of seriousness, but even this deserves condemnation due to its repeated nature. This perspective alone, however, substantially understates the numerous examples of more serious offending, particularly family violence, which taken as a whole, is a history that raises concerns about LPSP’s capacity to refrain from further offending.
RISK OF REOFFENDING
Evidence
A summary of incidents involving LPSP in detention between April 2018 and May 2019 is included in the material (BD18). The Applicant is identified as the ‘alleged offender’ in seven entries and is identified as ‘involved’ in a number of others. The substantial majority of the incidents are categorised as ‘minor’, but some involve allegations of assault. LPSP is also identified as the ‘alleged victim’ in four entries.
When taken to some of these matters in his evidence, LPSP accepted that he had been involved in incidents, at times with other detainees, in which violence was used. The Applicant stated that he now considered it inappropriate to defend himself by throwing a punch, and would do things differently. The Applicant also addresses a number of incidents in a written statement in which he also expresses remorse and regret for instances of verbal abuse and aggression (BD15, 732-733).
LPSP was also taken in his evidence to aspects of his published memoir (BD16, 1587). He stated that if writing an account of life with his ex-partner now, he would not present her as ‘playing the victim’ as he had written. LPSP also acknowledged that despite his descriptions of encounters with police, he understood he should not have resisted arrest and should show respect for the law. Further, the Applicant stated that he did not want his nieces and nephews to read his accounts of family violence as condoning violence against women, stating that he understood his behaviour was unacceptable.
In re-examination, LPSP confirmed that he had not consumed alcohol since 2016 and had not done so in detention, despite its availability. He acknowledged that he took full responsibility for his past actions and, as acknowledged in his memoir, had made ‘big mistakes’ and a lot of bad decisions.
In his November 2020 statement (T27), LPSP identifies a number of rehabilitation programs he has undertaken. These include mental health counselling, violence, alcohol and drug programs, and a range of educational courses [5]-[7]. LPSP here also notes his commencement of an online course on social work and the materials include a large number of recent certificates and transcripts (BD11). These records cover a range of fields and include ‘diploma’ courses in mental health and applied psychology, and participation in programs addressing anger management and parenting skills.
A report from a provider of assistance to survivors of torture and trauma in State 1 (STB31) confirms that LPSP was referred earlier in 2023, following his return to detention, by the medical services in detention. As at the date of writing, the Applicant had participated in four sessions of counselling and further fortnightly counselling sessions are recommended.
In his evidence, LPSP placed emphasis on gym training as forming part of his efforts to build self-discipline. He stated that Christian faith, particularly important to his mother, was a way to stay close to her and to community, stating that ‘I want to be a Christian and stuff’. LPSP agreed that his mother was ageing and had not been well, and noted that she had been ‘worried about her only son’. The Applicant stated that it was culturally important for the youngest son to care for their mother. He also stated that he had written plans for the future when in prison and detention, including getting work.
In cross-examination, LPSP was asked in particular about a Salvation Army intensive alcohol and drug program he undertook in 2015 (ST4, 840). Noting that he is recorded as engaging well with the activity, LPSP was asked why he had been unable to maintain control over his drinking. I understood the Applicant to say that he discovered ‘in [State 3]’, by which I consider he meant while in detention, that he had not focused on the main cause of his problems, which was his PTSD. He stated that he has been addressing his mental health since 2018 and intends to continue to do so.
The Applicant details his experiences upon release from detention in 2022 in his recent statement (BD7). He also sets out here the life goals he established, noting that he considers that he achieved a number of them while in the community, such as maintaining a healthy routine and getting a job [21]. He also identifies re-connecting with the South Sudanese community and commencing efforts to formalise contact with his sons [27], [30].
LPSP confirmed in evidence that he travelled to State 1 on release as had been his intention for some years. He also stated that he understood the importance of having the assistance of his support network. The Applicant confirmed that he gained employment while released and had been helped by his partner to write a resume and apply for jobs online.
In cross-examination, LPSP was again asked about his capacity to uphold his commitment to the needs of his mother, as reported by Dr Ball in 2011. The Applicant restated his understanding of his mental health needs, said that he would not take his network for granted, and explained that he took his freedom seriously when he had been released. When prompted about possible stresses arising in living in the community, LPSP appeared not to have given issues such as difficulty reconnecting with his children much thought. He also noted in evidence that he has been in regular contact with them.
Recent statements from all of the witnesses at the hearing appear in the materials (STB) (among a larger collection of references) and in some cases earlier statements have also been provided. I will summarise the key elements of the written and oral evidence:
(a)Mr A: has known LPSP for ten years from attending community events; is currently the chair of a youth association and has other relevant community organisation experience; he met with the Applicant during his recent release; stated that there is a role for LPSP in contributing to working with African youth in the community; and, noted that he has only a general sense of LPSP’s offending history;
(b)BP: has known LPSP since 2020, being introduced through his mother; the Applicant attended church and engaged with the community upon release, including with a Bishop from the South Sudanese community; his mother is a leader in the community and a strong leader of prayer; speaks with LPSP on an ‘occasional-regular’ basis meaning every four to six weeks, discussing the nature of forgiveness; the Applicant has been open in expressing his feelings and recovering broken relationships; there are opportunities for him to become involved in church youth activities; and, LPSP has made a lot of progress over the time of their engagement;
(c)Ms G: has always had a strong relationship with LPSP and they have been in regular contact via social media; she facilitated his travel to State 1 and provided assistance to help him obtain his learner driver licence; she also assisted the Applicant with inquiries about paying child support and formalising contact with this children;
(d)Mr M: has known LPSP since meeting in a refugee camp; has limited knowledge about the Applicant’s substance abuse and offending history; they played basketball together when LPSP was in school; they are in occasional contact now; and, he has learned lessons about discipline and consistency from their discussions;
(e)Mrs R: the mother’s evidence was somewhat marred by issues in interpretation; LPSP did not have a male role model growing up; in Dinka culture the youngest son is closest to the mother; they talk together regularly; she has little knowledge of his offending, but he was well behaved upon his release; and, she looks forward to living with him in the future;
(f)Ms B: met the Applicant online in 2021 and they met for the first time in person when he was released in December; he has grown and matured as a person, is ambitious and is planning his future; their dream is to get married and have children; she presently lives in State 2 and they have not yet decided who will move to ensure they can live together.
In her first report Dr Zimmerman (T27) explains her administration of a clinical instrument designed to assess risk of violent offending. She determined there that LPSP poses a low to medium risk of violence in the future [113]. She considered then that there was no risk of imminent violence as the Applicant had been alcohol free for four years [114]. Dr Zimmerman also observed that his maturation process cannot be understated and that there is a robust correlation between ageing and reduced recidivism [115].
Dr Zimmerman’s second report (BD6) was prepared 12 months after the initial report. She notes the longer period of sobriety, and the fact that LPSP had remained incident free in detention [95]-[96]. She concludes that the absence of aggression gave her confidence that LPSP poses a low risk of future re-offending [97]. Dr Zimmerman considers that community and family supports, including therapeutic services and accommodation with his sister increase her confidence that LPSP will have ‘a network in place to minimise his risk of future offending’ [98]-[101].
With reference to the Applicant’s memoir’s, Dr Zimmerman describes this as ‘an attempt to move from the story of that offender to that of the non-offender’, also relating it to academic literature concerning the idea of a ‘redemption script’ [110]. She states that LPSP has insight into the causes of his offending behaviour, and has realistic plans post-release [125]-[130]. Dr Zimmerman gives the further opinion that LPSP is at a low risk of future general offending [131].
In her evidence, Dr Zimmerman stated that there can never be a zero risk of reoffending, but that the relevant question was the level of intervention required to reduce the risk of future offending. She described ageing as one of the strongest factors identified in reducing risk; it is an independent and significant factor. Dr Zimmerman was also of the opinion that LPSP’s recent time in the community without misbehaviour was significant and gave her more confidence about his progress.
When asked in cross-examination about the impact of stressors in the community that may not necessarily manifest immediately, Dr Zimmerman responded that if supports are in place, then the likelihood of stressors affecting LPSP reduces. She noted that LPSP had undertaken rehabilitation work despite the challenges of being in detention, but acknowledged that some risk of relapse into alcohol use remained.
In response to a question from myself, Dr Zimmerman added that the length of time since last offending was an important factor in risk assessment.
Submissions
The parties differ as to the treatment of LPSP’s conduct in detention. The Applicant submits that these are mere allegations, and his detention record should not be relied upon as it reflects the unique nature of that environment (Revised SFIC [32], [33]). The Applicant’s submissions overall place great weight on the absence of misconduct in recent years, LPSP’s remorse and efforts at rehabilitation, and in particular what is contended to be productive time in the community when released in late 2022.
Specific written submissions of relevance here include the following (Revised SFIC):
(a)significant steps taken in prison and detention towards rehabilitation [34], [68];
(b)access if released to suitable supports that will contribute to his ability to lead a ‘pro-social’ life [37], [76]-[78];
(c)LPSP’s remorse and insight into his offending [71]-[72]; and
(d)his positive time in the community when released [39], [79]-[80].
At the hearing, the Applicant’s representative summarised the key contentions as comprising: firstly, chronology, noting that the last recorded incident in detention was in mid-2019; secondly, the evidence of wide and deep supports among family and community; and thirdly, the ‘forensic’ layer, being the clinical evidence concerning what has been identified as a low risk of recidivism. Particular emphasis was placed on the indications from the material that LPSP had in the past identified his plans for the future, and that he indeed pursued such plans when released into the community.
The Applicant’s representative also referred to a citation made at the commencement of the hearing to academic literature regarding the nature of the detention environment and its impact on mental health (BD11). The thrust of this submission is that the detention environment is conducive to poor mental health, that there is a misconception that detainees are manipulative, and that it is ill-informed in this context to describe them as exhibiting poor behaviour.
The Respondent submits (Revised SFIC) that no weight be given to contentions that LPSP has addressed his alcohol abuse, and submits that he continues to suffer PTSD symptoms [51]. The Respondent submits that a number of identified conduct issues while in detention demonstrate that LPSP has continued to act in a violent and abusive manner [72]-[73]. It is further submitted that the Applicant’s published memoirs contain implausible and self-serving accounts of incidents of past offending, and his descriptions of incidents of family violence demonstrate that he lacks insight [93]-[99]. The Respondent also contends that based on previous experience, LPSP’s prospects of engaging with rehabilitation are low [107]-[110].
At the hearing it was submitted that Dr Zimmerman’s evidence demonstrates that it is not possible to say there can be no risk of relapse. It was again stressed that LPSP’s lack of substantive rehabilitation during his offending period is an indicator that he has wasted chances in the past. His future prospects were described in submissions as ‘challenging’ given his substance use disorders and violent behaviour. The Respondent acknowledged that the Applicant has expressed full responsibility for his offending, but contended that a risk remained because it was not entirely clear how well established this insight is.
Consideration
I consider that the Respondent’s contentions focus appropriately on relatively tangible pieces of evidence that raise legitimate questions about LPSP’s rehabilitation. These are, specifically, his written memoir and his behaviour in detention. I accept that the former can be understood, as indicated by Dr Zimmerman, as forming part of LPSP’s psychological development. I also accept that I have no material before me indicating any conduct issues in detention for some years. I have already noted that the material does not disclose a record of consistent and substantial misbehaviour.
Overall, the Applicant has expressed, appropriately, both in writing and in evidence, remorse about his poor criminal record. This may well be an indication of the function of maturation which was identified in the evidence of Dr Zimmerman as being a critical indicator of recidivism. It must also be noted that she identified time since last criminal offending as being an important factor. Dr Zimmerman gave evidence in a measured way and was clear about the risk of relapse into addictive behaviour, and the importance of ongoing support and interventions.
I accept that in making clinical judgments about risk of recidivism there is no lower measure than a ‘low risk’. However, the evidence overall indicates that LPSP has available to him a support network including family, community, and clinical help. I also place some weight on the cultural significance of his role as the youngest son in helping his mother. This is consistent with evidence I have received in other hearings from representatives of African community organisations.
There is some indication in the evidence that LPSP might face some potentially conflicting demands in the future. He did not, for example, mention in his written statements the importance of his personal relationship. Ms B’s evidence however suggests that she is likely to be a positive force in his life and she did not exclude the possibility of moving to be with him. The evidence also indicates that LPSP is able to take appropriate steps, with the help of family, to continue to pursue a meaningful place in the life of his sons. In short, I consider LPSP has a number of factors that are likely to prove to be positive motivators.
Ultimately, I agree broadly with the contention that LPSP has in fact demonstrated his capacity to lead a ‘pro-social’ life in the community. The Applicant attained the unexpected benefit of release in late 2022. The evidence demonstrates that he engaged immediately with family, community and successfully entered the workforce. I consider this to be a significant factor and one that compensates for the weaknesses in some of the supporting references. I refer here to the number of supporting witnesses that appear to have a limited awareness of LPSP’s offending history.
CONCLUSION
It is appropriate to recall that the provision in question effectively raises a single test, encapsulated in one word: ‘danger’. The authorities cited provide guidance but there are, equally, warnings about the extent to which a term imported from an international convention should be subject to elaboration, or ‘gloss’ (DMQ20, Rares J [35]-[36]). For this reason it would be inappropriate, I consider, to simply engage in a weighting exercise with respect to the different factors discussed above.
I consider that the likelihood that LPSP will relapse into crime is low and likely to remain so due to the range of supports which the Applicant already demonstrated he is capable of accessing. The Applicant has in the past demonstrated the capacity to inflict harm upon others, and this harm is of a kind relevant to the consideration of what constitutes ‘danger’. However, LPSP has shown a very clear capacity to engage in a wide range of courses and activities that demonstrate his commitment to self-improvement. Moreover, he appears to have been determined when released into the community to demonstrate, if only to himself, that he is able to lead a lawful and productive life. I also note here the evidence of Dr Zimmerman about key clinical issues such as maturation, and time since last offending.
I consider that the overall probability of LPSP causing harm to the community again is acceptable in LPSP’s individual circumstances, and therefore I am satisfied that he should not be considered to be a danger to the community.
DECISION
For the reasons given above, the Tribunal decides to set aside the decision under review dated 20 January 2021 and remits the matter to the Respondent for reconsideration in accordance with the direction that the Applicant is not a danger to the Australian community.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
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Associate
Dated: 9 November 2023
Date(s) of hearing: 10 & 11 October 2023 Date final submissions received: 6 October 2023 Counsel for the Applicant: Mr Min Guo Solicitors for the Applicant: Asylum Seeker Resource Centre (ASRC) Counsel for the Respondent: Mr Greg Johnson Solicitors for the Respondent: Clayton Utz
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