MCVN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 2426

MCVN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2426 (8 August 2023)

Division:GENERAL DIVISION

File Number(s):      2022/5956

Re:MCVN  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R Bellamy

Date:08 August 2023

Place:Brisbane

The decision under review is affirmed

.................................[SGD].....................................

Senior Member R Bellamy

CATCHWORDS

MIGRATION – refusal to grant a Protection visa – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – where Applicant has been convicted by a final judgment of a particularly serious crime, whether he is a danger to the Australian community – multiple violent offences – decision under review affirmed.

LEGISLATION

Criminal Code 1899 (Qld)

Migration Act 1958 (Cth)

CASES

DOB18 v Minister for Home Affairs [2019] FCAFC 63

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

SECONDARY MATERIALS

CONVENTION RELATING TO THE STATUS OF REFUGEES, AMENDED BY THE PROTOCOL RELATING TO THE STATUS OF REFUGEES.

REASONS FOR DECISION

Senior Member R Bellamy

8 August 2023

background

1. The Applicant was born in Eritrea in January 1998. When he was approximately one year old, his family fled to Ethiopia where they lived in a refugee camp for the next 10 years. He arrived in Australia with his parents and siblings in April 2010, when he was 12 years old, as the holder of a Refugee (Subclass 200) visa. In December 2019, his visa was cancelled on character grounds due to criminal offending. The cancellation decision was affirmed by internal review and by a differently constituted Tribunal.

2. In April 2021, the Applicant applied for the Protection (Class XA) (Subclass 866) visa. While the Applicant was assessed as satisfying the refugee and complementary protection criteria, his application was refused because of the operation of both s36(1C)(b) and s36(2C)(b) of the Migration Act 1958 (“the Act”). The Applicant seeks review of that decision by the Tribunal. It is relevant to this application that among the Applicant’s convictions is a conviction for “robbery with actual violence armed/in company/wounded/used personal violence” which carries a maximum penalty of imprisonment for life by virtue of s 411(2) of the Criminal Code (Qld).

3. Section 65 of the Act relevantly provides that, after considering a valid application for a visa, if the Minister is satisfied that criteria for the grant of the visa have been satisfied and the grant of the visa is not prevented by other sections of the Act, the Minister is to grant the visa. If not satisfied, the Minister is to refuse to grant the visa. In this application, the Tribunal stands in the shoes of the Minister.

4. Subsection 36(1A) of the Act provides that:

   An Applicant for a protection visa must satisfy:

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

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

5. Paragraph 36(1C)(b) of the Act provides:

   “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.

6. Section 5M of the Act provides that “a particularly serious crime” for the purposes of
   s 36(1C)(b) includes a crime that consists of:

   ·“a serious Australian offence”; or

   ·“a serious foreign offence”.

7. A “Serious Australian offence” is relevantly defined in s 5 of the Act to include an offence against a law in force in Australia where the offence involves violence against a person and is punishable by imprisonment for life.

8. Additionally, specifically in relation to the complementary protection criteria in s 36(2)(aa) of the Act,
   s 36(2C)(b) of the Act provides:

   “A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

   …

   (b)  the Minister considers, on reasonable grounds, that:

   …

   (ii)  the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

9. As the Applicant has been convicted by a final judgment of a particularly serious crime, the only issue in contention is whether he is a danger to the Australian community.

10. The word “danger” has an ordinary meaning. It should be construed in its legislative context. Subsection 36(1C) of the Act was enacted to codify Article 33(2) of the United Nations Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees (“Refugees Convention”).

11. Article 33(1) of the Refugees Convention provides that:

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

12. Article 33(2) of the Refugees Convention provides that:

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

13. In DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”) Logan J made the following observations at [83]:

    “In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a Protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk…In my view, it carries a narrower and more restrictive meaning that just “risk”.”

14. In KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 at [54] Bromberg J said, in the context of s36(1C) the term “danger” does not mean any risk whatsoever, but it suggests a high level of risk.

15. The ordinary meaning of danger contemplates the probability of a thing occurring and the harm caused by its occurrence. References in these authorities to the seriousness of a risk must implicitly contemplate the seriousness of resultant harm. i.e. even a low risk of severe harm occurring can be considered a serious or high level risk. Accordingly, it is necessary to consider the likelihood of future offending and the harm from such offending.    

16. The hearing of this application proceeded via videoconference on 3 and 4 April 2023. Several lay witnesses gave evidence as did Dr Jacqueline Yoxall, psychologist. The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

    BACKGROUND AND CRIMINAL OFFENDING

17. According to the Applicant, life in the refugee camp was difficult and traumatic. His parents did their best to provide for the family but they were lucky to have more than one meal a day, and conditions were dirty and unhealthy for children. He recalled witnessing violence including an incident where a person’s hands were cut off as punishment for stealing.[1]

    [1] Transcript, page 6, lines 20 to 24.

18. When the Applicant was 12 years old he came to Australia with his parents, three brothers and sister. In 2016, he completed his final year of High School (year 12). He played soccer and had friends at his school. His friends and soccer associates were well behaved. However, in January or February 2016, he began to associate with a group that was not from his school, who he met at the local library. He would spend time with them on weekends. He also started using cannabis in 2016. He said he chose to spend time with this group because they consumed alcohol and he wanted to do that too.[2]

    [2] Transcript, page 53, lines 17 to 34.

19. A little while later, an argument occurred between the Applicant’s parents, resulting in police involvement and his father having to live away from the family home. In the hearing, the Applicant said that at exactly this time, he committed the offences described below, although it is not apparent which happened first, the Applicant’s father moving out or the offending. In written material the Applicant said he started using cannabis and drinking alcohol after his parents separated, and in another document, he said he turned to alcohol and drugs to deal with the pain of his father’s death (which occurred in August 2016), but I prefer the evidence he gave in the hearing in response to specific questions[3] which indicated that he started doing these things at the beginning of 2016, not after his father moved out of passed away.

    [3] Transcript, page 9, lines 1 to 6.

20. On the night of 18 March 2016, the Applicant, his brother “JB”, and around four or five others from the library group were drinking in a public park. According to the Applicant, everyone was very drunk and when they saw a person walk by, they decided to bash him. He recalled the victim was punched on the face but mostly on his body. A member of the group held the victim up so the others could keep attacking him. They “beat him up really bad”, stole his bag and ran away when they heard neighbours screaming at them and police sirens.[4] They left him lying on the ground. The Applicant admitted to having punched the victim a couple of times.[5] He later admitted to Dr Yoxall that he thought they might have killed the victim as he was not moving.[6] That is, the Applicant left the victim for dead. 

    [4] Transcript page 22, line 4 to 7.

    [5] Transcript page 22, line 15 to 23.  

    [6] Exhibit A2.

21. The victim was a knocked unconscious, and he suffered a right eye haematoma, facial bruising and abrasions to his arm and leg.[7]

    [7] T-documents: T18, page 2, lines 27 to 29. s

22. According to the Applicant, after they fled he and his friends separately went to a venue where people smoke hookah and they regrouped. At some time after midnight, they embarked on another unprovoked attack. The police report refers to a group of eight males, including the Applicant, encouraging each other to get into fights with members of the public, and speaking of “wanting to beat someone up”. The group surrounded three young men who were walking from a car to a unit complex and tried to incite them to fight. One of the men called triple 0. CCTV footage showed the Applicant at this time running ahead of the victims, turning, adopting a wide foot boxing type stance and raising his fists. The Applicant and five others then chased the victims inside the foyer while the others stayed on the street. The footage showed a flurry of punches and kicks directed at the victims. One victim was struck in the back of the head. When the police apprehended the Applicant the following month, he admitted to having punched one of the victims.[8] He was charged and released on bail. In the hearing he said he did not recall adopting a boxing stance, but he recalled throwing a kick.[9]

    [8] T-documents: T5: page 142.

    [9] Transcript, page 25, line 45 to page 26, line 5.

23. After the Applicant’s father moved out of the family home, the Applicant did not have any contact with him. He said he did not even have his father’s phone number.[10] In August 2016, his father took his own life. The Community Liaison Officer at the Applicant’s High School provided a letter to the Tribunal in which she indicated that the Applicant’s academic performance and behaviour at school deteriorated noticeably after his father’s death.[11] His eldest brother, “KM”, said it had a huge negative impact on the Applicant because he and their father were close – they used to share a room “and stuff like that”.[12]

    [10] Transcript, page 8 line 40.

    [11] Exhibit A4: pages 7 to 8.

    [12] Transcript page 63, lines 20 to 29.

24. Suicide is taboo in the Applicant’s culture so his father’s death came as a shock, and he felt guilty for not having contacted him or helped him. He said he started smoking a lot of cannabis and missing school.

25. In December of 2016, while the Applicant was still on bail for earlier offences, he participated in another unprovoked assault and robbery. He and others punched the victim multiple times and took his bag. The victim was left with abrasions on his elbow but was otherwise not seriously injured.[13] The Applicant described the circumstances of the assault. He and many other people had left a birthday party and were in the street. The victim walked by and some of the group surrounded him, bashed him, stole his bag and ran away. Except for the Applicant, none of the people involved in this assault had been involved in the assaults in March 2016. He described these people as random people from the party who were all drunk. He described himself as having been tipsy. Not everyone participated in the offending, some chose not to. When asked if he thought it was a bad thing to do at the time, the Applicant said he never thought about it.[14] 

    [13] T-documents: T8, page 241.

    [14] Transcript, page 27, line 43.

26. The Applicant graduated from school that same month and he started a certificate course in landscaping. He obtained work as a landscape labourer in January 2017.

27. In November 2017 and January 2018, the Applicant was dealt with for the offences in March and December 2016. He was sentenced to two terms of three years imprisonment and one term of four months imprisonment, all to be served concurrently, and granted immediate parole.

28. The Applicant’s employer closed down in December 2017 and he had difficulty finding work after that. He did a certificate in warehousing but he could not get a job. The Applicant did not commit any more offences until 23 March 2018.

29. On 23 March 2018, the Queensland police were conducting “Operation Lure” in response to an emerging trend in which a group of African males were using social media to advertise illegal drugs for sale, luring victims to parks, and robbing them. Detectives engaged on social media with a certain Facebook profile who posted on a Facebook page titled “Vegetables Australia”. They arranged to meet at a park to buy drugs. When they attended at the agreed location, they arrested the Applicant and another person. The Applicant had a clip-seal bag containing 9.6 grams of cannabis. He declined to participate in a recorded interview and he refused to provide the detectives with the password to unlock his phone. The other offender’s mobile had an open Facebook profile in his name, not the name of the profile the police had communicated with. Police believed the Applicant’s phone was used to send messages under that profile. The police found a knife in the vehicle used by the Applicant and his accomplice.[15] The Applicant was on parole at this time.

    [15] T-documents: T5, page 142.

30. In the hearing the Applicant sought to water down this offending. He said he saw this website and he had a little bit of cannabis that he decided to sell. He denied ever having previously sold drugs and said when he acquired drugs it was always with the intention of using, not selling. He did not admit to any intention to rob his customer.[16] Three days later, he was dealt with for that offending. He was convicted of possessing dangerous drugs, supplying dangerous drugs and possessing anything used in the commission of crime, and sentenced to 100 hours of community service. 

    [16] Transcript, page 30, lines 1 to 11.

31. I find it very suspicious that the Applicant refused to allow the police to inspect his phone. He said he refused because he did not want the police to take it. However, there would not appear to be a reason for the police to have taken it if there had not been anything incriminating on it. I do not think the Applicant was honest with the Tribunal about the criminal activity he was engaging in at this time. Rather, he sought to understate the extent of it and his involvement in it.  

32. In May 2018, the Applicant engaged in an “Alcohol Fuelled Violence Program” and the Artius Drug and Alcohol Program. The Applicant did not recall if he finished the programs but he recalled attending a few sessions inside the parole office.[17]

    [17] Transcript, page 48 line 26 to 32.

33. On 10 September 2018, when the Applicant only had a learner’s driving permit, he was caught speeding twice. He was again caught speeding twice on 17 September 2018. On 29 September 2018 he was caught drink driving (0.94 blood alcohol content), while failing to display L plates and he was driving while not under the direction of an appropriate person.[18]

    [18] T-documents: T5, page 203.

34. These offences occurred in the context of a festival at the Gold Coast. The Applicant’s friend was the designated driver so he could drink. They drove back to Brisbane at around 2am and the Applicant insisted on driving, saying that he had sobered up. He did this despite the designated driver not having consumed any alcohol. He lost control of the car and crashed into a wall. There were four people in the car.[19]

    [19] Transcript, page 33, line 15 to 19.

35. The Applicant was caught speeding again in May 2019.[20]  

    [20] T-documents: T5, page 203.

36. On 4 July 2019 the police intercepted a car being driven by the Applicant and detected cannabis on the Applicant’s breath. They later searched a hotel room where they found cannabis and methamphetamine, digital scales and a wallet containing $2,650 in cash along with bank cards, Centrelink cards, and various membership cards in the Applicant’s name.[21] 

    [21] T-documents: T8, page 251.

37. According to the Applicant, earlier that day he had collected a friend, at the friend’s request, when he was released from prison. To celebrate, they booked a motel room and smoked cannabis. He denied that the drugs of scales belonged to him, but he knew those things were in the motel room. He reluctantly pleaded guilty to possession offences.[22] When it was put to the Applicant that celebrating his friend’s release by partying did not seem like the actions of a person who was trying to obey parole conditions, he said he never really thought about it that way.[23]

    [22] Transcript, page 36, line 40 to 46.

    [23] Transcript, page 53, line 6 to 8.

38. As a result of being charged for this offending, the Applicant’s parole was suspended, and he was taken into custody. The parole board’s report observed that the Applicant had a poor attitude toward his Court Ordered Parole Order since its inception and that he had demonstrated “limited intention to engage with intervention and case management”. He had only attended one session with a psychologist after having been referred for treatment, and he self-reported that no treatment was required. He was also “highly avoidant” when directed to engage with substance abuse intervention.

39. While in prison, in August 2019, the Applicant walked in the opposite direction to what he was supposed to and then spat on the window of a door used by staff. The Applicant told the Tribunal that after seeing visitors that day he was on his way back to his unit and he had to spit as he had a bad cough. He meant to spit on the wall, and the windows were dark so he did not know there were officers behind them. He was removed from the privileged unit because of that incident. When asked why he chose to spit on the wall rather than into his hand or sleeve, he said he was not thinking straight. He then said he meant to spit on the ground and did not know why it hit the wall. He told the officers he was sorry and did not mean it. I find the Applicant’s explanation implausible, especially as the incident report records that he was walking in the wrong direction and there is a big difference between spitting at a wall and spitting at the floor. I am satisfied that the Applicant meant to spit on a window on a door used by staff. I accept that he apologised later. 

1. In April 2020, the Applicant was dealt with for the offences in July 2019. He was found guilty of possessing dangerous drugs, possessing property suspected of having been used in connection with the commission of a drug offence, and possession of property suspected of being the proceeds of an offence under Drugs Misuse Act, and not further punished. 

2. The Applicant’s visa was cancelled, and he was transferred to immigration detention. In December 2019 he asked for the cancellation to be revoked.

3. Only one month later, in January 2020, the Applicant attempted to strike a guard when he was being strip-searched and a prohibited item, being a letter, was found on him. He had been asked to take the letter by another inmate. The Applicant when asked about this incident. He said he was very immature at the time.

4. In July 2020, there was a targeted search of the room the Applicant shared with another detainee. A small strip of Suboxone wrapped in cigarette paper, an improvised metal shiv, a small screwdriver, five USB sticks, a small pink cigarette lighter, a thin metal rod and numerous smoking implements were found. In the hearing, the Applicant claimed he had no idea any of the items were in the room. He said he was only accommodated in that room for two weeks before it was searched so the shiv could have been put there by a former occupant. He said his roommate took responsibility for the Suboxone because it was found on his phone cover, and for most of the other items but he claimed not to have seen the shiv before.[24]  In the absence of stronger evidence linking the Applicant to these items I am not prepared to find that they were his or that he knew about them. 

   [24] Transcript, page 43, line 4 to 19.

5. In August 2020, the Applicant made threats because he was not allowed to use an exercise yard. He explained in the hearing that he was having a bad day because he found out that his youngest brother, “NG” had been getting in trouble with the police and skipping school.[25]  

   [25] Transcript, page 44, line 22.

6. In January 2023, at his roommate’s request, the Applicant knowingly concealed contraband drugs, Suboxone, wrapped in his roommate’s phone charger and gave it to an officer to pass to his roommate. He told the Tribunal that “That’s your roommate, you have to do it for him.”[26]

   [26] Transcript, page 47, line 45

7. The Applicant claims that he has not consumed alcohol or drugs since he was taken into custody on 6 July 2019, and there is no evidence to the contrary, so I accept that.  

   IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?

8. It is well accepted that one of the best predictors of future behaviour is past behaviour. The Applicant committed some 12 offences between March 2016 and July 2019 when he was finally taken into custody. They include: 

   ·two separate unprovoked physical attacks on a lone member of the community. The first attack was particularly appalling. The group also robbed each victim;

   ·one unprovoked physical attack on a small group of people, even after the victims tried to get away;

   ·unlicenced driving while under the influence of alcohol, resulting in him crashing the car, in circumstances where there was a sober, willing designated driver; and

   ·an attempt to supply cannabis.

9. The Applicant committed offences while on bail and while on parole. He offended even when his brother JB was in prison, but he told the Tribunal he never thought he would end up in prison. The Applicant was interviewed by Professor Freeman, forensic psychologist, at one time, for the purpose of a risk assessment. He told Professor Freeman that he would speak with his parole officer weekly and he wanted to change.[27] He consumed less alcohol and avoided going to parks and his old friends. Instead, he drank at friend’s houses because there was less violence.

   [27] T-documents: T16, page 464.

10. In the years when the Applicant was offending, he was otherwise living a relatively normal life, attending school (with some absences after his father died), playing soccer, working in landscaping and attending church around once per month. Although he was living in the family home, no one in his family knew about his drinking and offending. He said he used to lock his bedroom, sneak back in later, and tell his family he had been in his room the whole time. They never expected him to be home for dinner, and he used to lie a lot to get out of the house. When his mother phoned him, he did not answer. Once he came home drunk and had to knock on the door, because he did not have keys. His mother opened the door and smelt alcohol. After that, whenever he tried to go out, she said “You’re going to drink, aren’t you. Don’t go out”.[28] However, evidently her words fell on deaf ears. His older brother, KM, only found out about his offending when he was incarcerated and KM read the court papers. He told the Applicant to stop offending and using substances, and to look for a job. The Applicant said KM always gave him good advice which he ignored. There are several letters from friends of the family and community leaders who expressed utter surprise at the Applicant’s offending. 

    [28] Transcript, page 21, line 19 to 20.

11. The Applicant has been in custody for four years. He claimed that prison was the “wake-up call” he needed and it gave him time to reflect on his offending. He feels horrible about what he did, and he wants to be a better person. He has completed two rehabilitation courses while in immigration detention being, Anger Management 101 and Drug and Alcohol Abuse 101. He has also started the SMART Recovery online course and he attends fortnightly counselling appointments. He has contacted the Queensland Program of Assistance to Survivors of Torture and Trauma about counselling if he is released to the community. He said he has matured and he will not re-offend. The Applicant has learnt to look after his mental health through exercise: he runs three or four times per week and plays soccer. While he has not engaged in grief counselling, he claims to have now come to terms with the guilt he felt about his father’s suicide.

12. Dr Yoxall, psychologist, interviewed the Applicant in March 2023 for the purpose of assessing his risk of recidivism. I prefer her risk assessment to the one done by Professor Freeman in 2021 as it is recent. Using several actuarial tools and her clinical judgement, Dr Yoxall concluded that there was a low to moderate risk of re-offending which was heavily dependent on whether the Applicant relapses into drug and alcohol dependence and abuse. She added that if he engages in the recommended rehabilitation and intervention his risk of reoffending would be reduced to low.   

13. Dr Yoxall thought the Applicant, having spent some years in custody, had matured so that he had reflected on his behaviour and was ready to engage in rehabilitative intervention and trauma counselling. She noted that he had expressed a great deal of remorse for the victims of his violent offending and shame about his conduct. 

14. There are some difficulties with Dr Yoxall’s assessment because, as often happens in these matters, evidence emerged during the hearing that added to or differed from the information that had been provide to her. For example, Dr Yoxall accepted the Applicant’s account that, with respect to the assaults in March 2016, his friends decided to initiate the violence and he “went along with it”. What she did not know was that the Applicant was the only person who participated in both the March 2016 and the December 2016 assaults, and that some of the people who were present at the December 2016 attack did not participate in it. That information, coupled with the CCTV footage showing the Applicant taking quite an active role in one of the March 2016 attacks, suggests that the Applicant was not a passive actor who succumbed to peer pressure.

15. Further, Dr Yoxall thought the Applicant’s father died only weeks before the December 2016 assault and that the Applicant was heavily intoxicated at the time. In fact, the Applicant’s father died in August and the Applicant was merely tipsy when he participated in the assault. Dr Yoxall believed that after the Applicant’s father died, he became depressed and despondent, and he turned to peers who were also disengaged, disconnected with society and angry at life. In fact, the Applicant had been associating with that group since January or February 2016 because he wanted to consume alcohol with them. He committed the December 2016 assault with “random people”, not that group. Considering these things, the theory that the Applicant turned to substances and disaffected associates to cope with emotional turmoil and that substance abuse played a key role in his violent offending is not a complete explanation of his offending. What is more, the fact that the Applicant had law abiding friends from school and soccer undermines the theory that the Applicant’s strong need to belong to a group was a contributor to the violent offending.

16. Dr Yoxall also had incomplete information about the Applicant’s brothers. She understood that JB (a co-offender in the March 2016 attacks) had “turned his life around” as he was working full-time and had not re-offended. In fact, JB had been in prison for a sexual offence as recently as the middle of last year, so it remains to be seen whether he has truly reformed. Nor was Dr Yoxall aware that the Applicant’s younger brother, NG, had recently been to prison. The Applicant intends to live in the family home, where all his siblings live, so his brothers’ recent involvement in crime is quite obviously relevant to his prospects of rehabilitation.

17. Dr Yoxall was unaware that the Applicant knew he was placing drugs into his roommates phone charger and when she was told about that she said it was relevant to his preparedness to engage in anti-social behaviour.

18. When Dr Yoxall was given all of the above information, she said it did not put the risk of recidivism above moderate, but it affected her assessment of the kind of treatment the Applicant needs, being residential drug and alcohol rehabilitation that could potentially transition to him living in the community. 

19. I asked Dr Yoxall about the apparent moral deficit revealed by the Applicant’s violent offending. While not putting it in terms of morals, she did say his readiness to assault people was of serious concern, and that anger management and drug course do not address a person’s internal value system to the degree that the Applicant requires.[29] In her opinion, the Applicant needs trauma counselling over a period of time to build up strategies and to understand himself better. She recommended that he first engage in drug and alcohol counselling and anger management counselling to build up support and put strategies in place so he does not revert to maladaptive behaviour. Then, he would engage in counselling to unpack his trauma, which is a process that takes years.[30] She thought the Applicant potentially could return to the community without necessarily falling back into his old patterns, but it would depend on how he copes with daily life stresses and the stresses of re-engagement in the community.[31]  

    [29] Transcript, page 101, line 39 to page 102 line 21.

    [30] Transcript, page 101, line 39 to 47.    

    [31] Transcript page 105, line 30 to 40.

20. I accept that the Applicant currently intends to engage in rehabilitative counselling and programs in the community and to get a full-time job. I accept that his mother, KM and his sister want to support him in his rehabilitation. JB and NG did not give written or oral evidence and there was no suggestion that either of them would provide any assistance to the Applicant.   

21. The Applicant put forward several letters from family and members of his community. They all spoke well of him, expressed shock at his offending and indicated that he has changed for the better. Many offered excuses for the offending, and very few displayed detailed knowledge of his crimes.   

22. KM described the Applicant as loving and family oriented. He never saw the Applicant come home drunk and he was shocked by the Applicant’s offending. He has arranged counselling for the Applicant with Drug ARM and an interview with Return to Hope for the purpose of assessing what sort of support he needs. He can also get him a job where he works, and he can arrange a car for him so he can attend work and appointments. He wants the Applicant to participate in his church’s weekly youth program to teach him how to be responsible and live in Christ. There is also a soccer team that trains twice per week with matches on the weekend.  He intends to keep an eye on the Applicant, make sure he does not reoffend and get him the support he needs.

23. The Applicant’s mother said she will provide whatever support she can, including the use of her car to commute to work and she will encourage the Applicant to attend the church youth program. She thinks school or work will prevent him from reoffending by keeping him busy. Another friend in the community offered similar support and encouragement to attend the youth program.

24. A family friend, GG, has known the Applicant since 2005 when they were in the same refugee camp, and he now visits the family home frequently. He is aware of the offences the Applicant committed, and despite that, he thinks the Applicant is a person of good character. The Applicant has expressed regret about his offending to GG. GG is Christian and he wants the Applicant to attend the youth program. He has offered the Applicant accommodation in his home with his wife and two children as long as he abides by the law. He will not tolerate any bad friends coming around. He will support the Applicant in positive endeavours such as attending TAFE.   

25. Ms Saba Abraham who is the Founder and Director of the Eritrean Australian Women and Family Support Network Inc. said, on behalf of the local Eritrean community, that they will support the Applicant as much as is needed, and that could include emotional support and practical support such as putting him in touch with young people around his age. She said the Applicant used to be quite active in their community.

26. Ms Mulu Fantu has known the Applicant and his family since they arrived in Australia. She has offered the Applicant a job at her restaurant so he can work with her and she can keep an eye on him. She already does that for another person who was in trouble and who has been living with her for over a year.

27. I accept that the Applicant has significant family and community support, with Ms Fantu willing to supervise the Applicant at work and KM willing to keep an eye on him outside work. I further accept that employment, counselling, soccer and the youth program will be stabilising, positive influences on him and will not leave much time to engage in anti-social behaviour. However, that relies on him sticking with all of those things. I also note that he engaged in anti-social behaviour previously when he was enrolled in school, playing soccer and connected with the church, and that none of his friends or family knew about it. The Applicant thinks KM and his mother will be watching him more closely this time around. I accept that they will want to, but they cannot force the Applicant to stay home or to tell them what he does outside the home.  

28. None of the witnesses appeared to know much about JB’s and NG’s recent offending, only that JB was incarcerated for a sexual offence and NG was incarcerated for something to do with violence. When JB and the Applicant were sentenced for the assaults they committed together, JB was also sentenced for a separate assault he committed with someone else. At the time of the sentence being passed, in November 2017, the learned Judge noted that JB was working full-time, and attending counselling and a local Catholic church. Yet, evidently, he went on to re-offend. I do not have confidence that JB’s engagement in full-time work and his short period of good behaviour (if indeed he has been of good behaviour) means he will not return to crime. NG has been getting into trouble with the police since 2020 at the latest and he was recently incarcerated. KM could not get any details from NG about his offending. He said NG does not tell him anything, although he does not think NG drinks alcohol. The Applicant and JB do not speak much anymore. 

29. Dr Yoxall agreed that living in a family unit where people are actively engaging in abuse of substances or offending is a risk factor for re-offending, and if there are more people with a criminal history that potentially increase the risk. There is no evidence that JB or NG is engaged in substance abuse or offending but there is obviously a risk that one or both might re-offend due to their history of offending. I acknowledge that GG has offered alternative accommodation and I have no reasons to doubt his good character or that of his wife. GG’s ability to make sure the Applicant does the right thing is largely dependent on the Applicant’s co-operation.   

30. It concerns me greatly that the Applicant participated in group attacks on strangers seemingly because others were prepared to do the same. He was not coerced into abusing substances or engaging in the offending. On one occasion he was not very drunk. It is also concerning that the Applicant drove a vehicle while under the influence of alcohol, without a driver’s license, when there was a sober designated driver willing to drive. All of this offending displayed lack of moral standards, callousness and disregard for the wellbeing and even the lives of others.

31. The Applicant has been in a controlled environment where there is a high level of surveillance for the last four years. It remains to be seen whether he will commit to the intervention he needs in the wider community. I am not convinced that his word can be trusted by the Tribunal or those who have undertaken to support and supervise him. While he seemed to be forthcoming in a lot of his evidence, there were times when I thought he was deliberately understating his wrongdoing.

32. The Applicant has not made the best of his time in prison and immigration detention, trying to punch a guard in 2020, and knowingly trying to convey contraband to his roommate in early 2023. He has undergone rather limited rehabilitative intervention compared with what Dr Yoxall thinks he needs. The latest incident in detention suggests that the Applicant is still easily influenced to break rules. The Respondent submitted that there is a risk that the Applicant will re-offend if he were to encounter one or two negative peers who take drugs or consume alcohol or encourage him to be violent. I think that is a fair submission.

33. Dr Yoxall assessed the risk of re-offending to be low to moderate before she was aware of several matters that she acknowledged were of concern. Further, she indicated that the risk would only be reduced to low if the Applicant were to engage in extensive rehabilitation. The harm that is likely to result from further violent offending of the kind the Applicant has previously engaged in includes serious physical and/or psychological injury or even death. Any material risk of that level of harm occurring constitutes a danger to the community. I am satisfied that there is indeed a material risk of further offending including violent offending. There is also potential for serious harm in circulating dangerous drugs in the community and drink driving. I mention those things because even though there is no pattern of committing those offences, they demonstrate that the Applicant is versatile in his criminality, meaning it is not only the harm from violent offending that could be inflicted upon the community.    

34. The Applicant does not satisfy s 36(1C) of the Act and he therefore does not satisfy the criteria for a protection visa. Because of the operation of s 36(2C)(b)(ii) the Applicant also does not satisfy s 36(2)(aa) of the Act.

    DECISION

1. The decision under review is affirmed.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

...................................[SGD].....................................

Associate

Dated: 08 August 2023

Date(s) of hearing:	3 and 4 April 2023
Solicitors for the Applicant:	Ms Meka Larsen  Samuta McComber Lawyers
Solicitors for the Respondent:	Mr Alex Chan Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T Documents (T1 to T18 paged 1 to 188)	R	-	15 December 2021
A1	·     Applicant’s Statement of Facts, Issues and Contentions (16 pages)	A	06/02/2023	06/02/2023
A2	·     Applicant’s compiled tender bundle (79 pages)	A	Various	28/03/2023
A3	·     Applicant’s supplementary tender bundle (3 pages)	A	Various	29/03/2023
A4	Bundle of letters of support lodged 30 September 2023 (8 pages): -    Applicant’s Friend -    Applicant’s Brother: JB -    Applicant’s Friend -    Community Liaison Officer	A	-	30/09/2023
A5	Applicant’s statement regarding mother’s medical condition (2 pages)	A	30/09/2023
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 13)	R	28 February 2022	28 February 2022
R2	Respondent’s Tender Bundle (R1 to R5, paged 1 to 203)	R	-	28 February 2022