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

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 662

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2009/2379

GENERAL DIVISION )
ReBHYK

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalMr RP Handley, Deputy President
Mr DM Connolly AM, Member

Date2 September 2010
PlaceSydney
DecisionThe Tribunal affirms the decision of the delegate that BHYK constitutes a danger to the Australian community in accordance with Article 33(2) of the Refugees Convention.
.....................[sgd]....................
Mr RP Handley
Deputy President

CATCHWORDS

MIGRATION – Protection Visa – cancellation - whether applicant comes within the exception provided for in Article 33(2) of the Convention Relating to the Status of Refugees in that he constitutes a danger to the Australian community – applicant convicted of a particularly serious crime – risk of recidivism – plans for future rehabilitation unsatisfactory

RELEVANT ACTS

Migration Act 1958 (Cth): ss 36, 91U

CITATIONS

WKCG and Minister for Immigration and Citizenship [2009] AATA 512

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100

OTHER AUTHORITIES

Convention Relating to the Status of Refugees: Article 33(2)

REASONS FOR DECISION

2 September 2010

Mr RP Handley, Deputy President

Mr DM Connolly AM, Member

BHYK has applied for the review of a decision to refuse his application for a Protection (Class XA) visa on the ground that he is not a person to whom Australia owes protection obligations pursuant to s 36(2) of the Migration Act 1958 (Cth) (the Act) and Article 33(2) of the Convention Relating to the Status of Refugees (the Refugees Convention). As explained below, the issue for the Tribunal to determine is whether BHYK constitutes a danger to the Australian community.

Background

BHYK was born in West Papua (Irian Jaya) in 1955 and is aged 55. He states that he left his village at the age of eight and went to join the rebels resisting Indonesian control in Merauke. Thereafter, he lived in a rebel camp near the border with Papua New Guinea (PNG). He was first involved in fighting against Indonesian forces at the age of 15.
In 1973, he was arrested, detained and tortured by Indonesian officials and, in March 1975, was shot and seriously injured by the Indonesian military. In June 1985, he arrived in Australia by canoe from PNG and was granted temporary entry. In November 1993, he was granted a Domestic Protection (Temporary) Entry Permit which, in September 1994, was converted to a Transitional (Permanent) visa.
BHYK states that in September 1996, he was persuaded to return to West Papua in order to visit his father who, he was told, was in prison. (In evidence, he said that, at the time, he had been working as a casual bodyguard for the Indonesian Consulate in Melbourne for some years, employed for about seven out of every 14 days and earning up to $3,000 per day. He was “set up” by the Indonesian officials who arranged for him to fly to Indonesia by private jet.) BHYK states that, on arrival, he was arrested by the Indonesian military and physically assaulted, but he escaped from the military prison and was smuggled to PNG. From there he returned to Australia, arriving on 22 July 1997.
BHYK’s criminal history in Australia dates from February 1986 when he committed the offence of ‘behave in a disorderly manner’, of which he was convicted in March 1986 and in respect of which he was sentenced to community service. In October 1988, he committed the offence of ‘grievous bodily harm’, of which he was convicted in February 1989 and sentenced to three months’ imprisonment. During the next seven years, he had convictions for ‘destroy or damage property’, ‘fail to answer bail’, ‘assault and criminal damage’, further separate convictions for ‘assault’, in respect of each of which he received a fine, and a conviction for ‘intentionally or recklessly cause injury’ for which he was sentenced to four months’ imprisonment, suspended for two years.
After returning to Australia in July 1997, he committed the offence of ‘possess dangerous drugs’, of which he was convicted on 24 October 1997 and fined $375. Thereafter, he committed the offence of ‘causing wilful damage’ and ‘breach bail’, of which he was convicted on 28 January 1999 and fined $600, the offence of ‘obstruct police’, of which he was convicted on 22 July 1999 and fined $120, and the offence of ‘possess dangerous drugs’, of which he was convicted on 24 August 1999 and fined $500.
On 27 May 2000, BHYK was arrested and detained after assaulting his de facto spouse, who died in hospital four days later. While he was initially charged with murder, he subsequently pleaded guilty to a charge of manslaughter for which he was sentenced on 17 September 2001 to seven years' imprisonment with a non-parole period of two years and six months. He was later refused parole, and was released from custody having served his sentence on 18 June 2007, when he was immediately taken into immigration detention. His visa had been cancelled on 5 March 2003 and a request for Ministerial intervention seeking a more favourable immigration decision was refused on 21 February 2005.
While in custody, BHYK has been the subject of occasional incident reports involving minor assaults, arguments, threats and aggression where he was either the offender or, sometimes, the victim. He has also been the subject of various behaviour reports, which both refer to his aggression and also to his being polite, courteous and friendly. Assessments refer to him as being a medium security risk and a medium community risk.
While in custody, BHYK has completed an anger management program (8 April 2002), a substance abuse program (8 May 2002), a cognitive skills course (5 March 2004), and an ‘Ending Offending’ program (13 August 2004). He joined a Bible study group run by the Salvation Army prison chaplain in Brisbane in February 2005, with whom, since then, he has remained in regular contact. He has also developed his skills as an artist.
While in immigration detention at Villawood Detention Centre, there have apparently been nine incident reports about BHYK. Little detail has been provided. However, four incident reports allege aggressive/abusive behaviour by BHYK and, in a fifth incident, BHYK appears to have been the victim of an assault. One incident involved BHYK allegedly damaging a water-pipe, one incident report records ‘prohibited article located’, and another records that BHYK was found mailing a camera and film to an external address.
On being taken into immigration detention, BHYK made a further request for Ministerial intervention which was refused on 13 July 2007. Nevertheless, on 25 September 2008, BHYK was examined by Dr Kipling Walker, Consultant Psychiatrist, at the request of the Department. Dr Walker provided a report dated 27 October 2008 in which he stated his opinion that BHYK “is at high risk of further violent offences … [and] will not benefit from psychiatric or psychological treatment”. On 12 December 2008, the Minister decided to permit BHYK to apply for a protection visa and BHYK lodged an application on 23 December 2008.
On 21 January 2009, BHYK was interviewed by a departmental officer in relation to his protection visa application. On 26 May 2009, a delegate of the Minister found that BHYK had a well-founded fear of political persecution in accordance with Article 1A of the Refugees Convention, but found that because he has been convicted of a particularly serious crime and constitutes a danger to the Australian community, pursuant to Article 33(2) of the Convention, he is not a person to whom Australia owes protection obligations. The delegate therefore refused BHYK’s application for a Protection (Class XA) visa. On 27 May 2009, BHYK applied to the Tribunal for a review of this decision.

The Relevant Law and Issues

Section 36(2) of the Act states relevantly:
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
…
The Minister accepts that BHYK has a well-founded fear of persecution in Indonesia. The issue for the Tribunal is whether BHYK comes within the exception to a country’s protection visa obligations provided for in Article 33(2) of the Refugees Convention. Article 33 states:
Prohibition of expulsion or return ("refoulement")
(1)No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(2)The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

Section 91U(1) of the Act defines a “particularly serious crime” as including the commission of a ‘serious Australian offence’, and s 91U(2) defines a ‘serious Australian offence’ as including an offence involving violence against the person and which is punishable by imprisonment for not less than three years.
The Applicant concedes that he has committed “a particularly serious crime” within the meaning of s 91U of the Act and Article 33(2) of the Refugees Convention. The question for the Tribunal, therefore, is whether he constitutes a danger to the Australian community.

The Evidence before the Tribunal

The documents before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 together with documents provided by the parties, most of which had been produced under summons by Queensland Health (Offender Health Services) and by the Queensland Department of Community Safety. These relate to the period BHYK spent in custody in Queensland between 2000 and 2007. The Applicant also provided a ‘Psychological Assessment Report’ prepared by Dr Emma Collins, Clinical and Forensic Psychologist, dated 22 March 2010, and the Minister provided a copy of BHYK’s Australian Federal Police ‘Police Certificate’ dated 7 August 2009 and a further report from Dr Walker dated 18 May 2010.

BHYK’s Evidence

BHYK gave evidence at the hearing. He was asked about a written request made by him at Villawood Detention Centre on 28 June 2008 to be moved from stage one to stage three. He said a Samoan man repeatedly threatened him, particularly over BHYK’s refusal to buy the man cigarettes. BHYK said he would not buy him cigarettes because he disagrees with smoking. BHYK had asked to be moved on a number of occasions to get away from these threats, but his requests had not been listened to. He was concerned that if pushed too hard by this man, he might be provoked into responding by, for example, punching him. He said he wanted to avoid doing the wrong thing.
BHYK acknowledged that this was not the only problem he has had while in detention. He said that in November 2007, another detainee, from Korea, smashed BHYK’s television and stereo. The man had wanted BHYK to play the Korean man’s music on BHYK’s stereo. BHYK was already playing someone else’s music and said he would play the Korean man’s music after this. The man returned half an hour later and smashed BHYK’s stereo on the floor and attacked BHYK. BHYK said he dragged the man to a clear area. BHYK said this man had punched him a couple of days previously but BHYK had not sought treatment. BHYK said music is important to him. He likes to listen to music while he is thinking. It helps to calm him.
BHYK was asked about his children in Australia. He has 14 children in Australia from four different mothers, the eldest aged about 24. In each case, the marriage-like relationship broke up and he left the children with their mother. He has had no recent contact with any of his children and does not know where they are, although he thinks three sons live in Brisbane. If “things” get better, he will try and locate them. BHYK said he had one child with his de facto spouse who died following the incident on 27 May 2000. She was also pregnant at the time.
BHYK said on the day of the incident in May 2000, he had caught his de facto spouse with someone else in the house, it being the third time this had happened. Both he and his de facto spouse had been drinking and he had been smoking cannabis. They had an argument and she threw a child’s bicycle at him. He threw it back and walked away. What happened was an accident but he blames himself for those events. He and the woman had split up for a while but she kept coming back and the Indigenous police and her parents pressured him to take her back.
BHYK said that before he was imprisoned in 2000, he used to drink alcohol most days. He was an alcoholic. He also used marijuana – about once every three months - when he also used to carry on drinking for about three days. He has not drunk alcohol since he was imprisoned. He is not interested in alcohol, drugs or nicotine anymore and would not go back to them if released.
BHYK said he has a friend in Brisbane – the Salvation Army prison chaplain – who has accommodation for him in a house in Brisbane if BHYK is released. He talks with the chaplain on the phone almost every day. BHYK was referred to a supporting letter from the chaplain for BHYK faxed to the Department on 23 December 2008, setting out a four‑stage strategy for BHYK’s rehabilitation. BHYK said the chaplain’s offer still stands.
BHYK was asked about his artwork. He said he had sold between 20 and 27 paintings before he was imprisoned. While in prison, he gave paintings to support three charities: two paintings each to ‘Wildlife Warriors’ and the Brisbane Children’s Hospital, and three paintings to the Fred Hollows Foundation. He was informed that one painting sold at a charity auction for $5,000 and another for $5m.

The Psychological Evidence

As noted above, the Tribunal has before it reports from Dr Kipling Walker, Consultant Psychiatrist, dated 27 October 2008 and 18 May 2010, and a report from Dr Emma Collins, Clinical and Forensic Psychologist, dated 22 March 2010. Dr Walker and Dr Collins gave evidence concurrently at the hearing.
In his report dated 27 October 2008, Dr Walker recorded that he had interviewed BHYK for one hour on 25 September 2008. Dr Walker diagnosed BHYK with polysubstance abuse and a personality disorder. He stated his opinion that BHYK:
… has a personality disorder, defined as a persistent pattern of abnormal emotions and behaviour. …
[BHYK] is at high risk of further violent offences. He continues to use threats to get what he wants. He has little insight into his problems with his temper. He will not benefit from psychiatric or psychological treatment. He has had a very limited education.

In her report dated 22 March 2010, Dr Collins recorded that she interviewed BHYK for two hours at Villawood Detention Centre on 5 February 2010. She stated her opinion that:
It appears that aggression is a behaviour that [BHYK] uses to express himself due to his culture and the influence of machismo. He does not appear to have acculturated to Westernised lifestyle, and it seems his risk of recidivism will be more easily managed if he is capable of sustained substance abstinence and treatment around impulse control. It is noted that with his advancing age, impulse control generally improves. [BHYK]’s recidivism risk is assessed as moderate based on his age; however, his risk could be reasonably managed if he were to be placed in a supportive environment that is pro-social and accepting of his cultural background and influences.

In his report dated 18 May 2010, Dr Walker confirmed his earlier diagnoses and said that, in his opinion, BHYK’s:
history of violence cannot be explained by cultural differences. He is at high risk of further violent offences. …
[BHYK]’s risk of recidivism in the Australian community cannot be managed by psychiatric and/or psychological treatment. Substance use will increase his risk. He is unlikely to benefit from specialist drug and alcohol services because, when seen for my earlier report, he did not want treatment.

In oral evidence, Dr Walker confirmed his above stated opinion. With regard to BHYK’s personality, he noted as BHYK’s personality traits his anti-social characteristics and persistent use of threats to get what he wants. BHYK falls within the ‘B’ group of personality disorders who do not respond well to treatment. In cross-examination, Dr Walker acknowledged that the reports from the Queensland Department of Corrective Services indicate that BHYK had benefitted from the anger management program he completed on 8 April 2002 and from the ‘Substance Abuse Educational Program’ completed on 8 May 2002. He also benefited from the ‘Cognitive Skills Program’ completed on 5 March 2004, for which BHYK’s exit report suggests that he does have insight into the offence that resulted in the death of his de facto spouse.
Dr Walker was referred to a Queensland Department of Corrective Services document dated 26 April 2005 recording that BHYK told a psychologist “that he will ‘kill someone’ in response to being refused remissions”. Dr Walker said such threats, the purpose of which is to manipulate, are consistent with BHYK having a personality disorder. However, Dr Walker acknowledged that a case note dated 10 April 2005 indicates that there were no problems with BHYK’s behaviour. He also acknowledged that there is treatment that might assist BHYK, but said he doubts BHYK could access this because of a lack of resources.
In oral evidence, Dr Collins said that while she does not believe BHYK can be assessed as suffering from a personality disorder, she agrees that his personality is a risk factor and that he has pervasive personality traits. For example, she agrees that he is impulsive. She said there needs to be a management plan in place for BHYK involving some degree of supervision, and which should include a focus on treatment in relation to anger, impulse control and substance abuse. Dr Collins was asked about the four‑stage strategy proposed by the Salvation Army chaplain in his letter of support faxed to the Department on 23 December 2008. She was concerned that the plan is more than 18 months old and said she would want to see this updated with more detail provided as to the counselling proposed.
Dr Collins said some of BHYK’s behaviour indicates bravado and she doubted there was always genuine intent behind the threats. She was asked about a report prepared by a psychologist dated 13 January 2005, prepared after the psychologist had spent eight hours with BHYK. Dr Collins said the report captured the cultural influences on BHYK’s behaviour “rather well”.
In cross-examination, Dr Collins said that BHYK appears to have vacillated in his response to treatment programs over time, and agreed that the evidence suggests inconsistencies in his behaviour: on the one hand, reports of the use of threats to try and resolve things in his favour and, on the other hand reports of his being polite, compliant and easily managed. She also agreed that BHYK’s incident history, with the references to his sometimes being aggressive and, arguably, manipulative, suggests that he has little insight into his offending behaviour. Dr Collins emphasised the importance of risk management for BHYK, including a cultural component.

How the Law should be applied

The parties agree that the test to be applied in determining whether BHYK constitutes a danger to the Australian community is that set out by Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (WKCG):
25.The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
26.Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
…
31.The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable”.

Thus, the Tribunal must determine whether there is a real or significant risk or possibility of harm to one or more members of the Australian community. An assessment must be made of the likelihood of the applicant reoffending by reference to past circumstances, including criminal history, and of the applicant’s prospects for rehabilitation.
We accept, as submitted by Mr Poynder for BHYK, that because of the seriousness of the consequences flowing from the Tribunal’s determination – the possibility of BHYK being returned to Indonesia – the Tribunal must be ‘comfortably satisfied’ with its findings: Briginshaw v Briginshaw (1938) 60 CLR 336, see especially Rich CJ at 350, and Dixon J at 362-363.

Submissions

Mr Poynder submitted that the Tribunal should not rely on the reported incidents involving BHYK in prison because these are serious matters and most were not put to BHYK. At best, the incidents indicate ‘machismo’ behaviour by BHYK which in no instance resulted in any serious violence. Moreover, the prison situation should not be equated with that of the general community, and what happened in prison is not indicative of the likelihood of harm to members of the Australian community.
Mr Poynder noted that BHYK has had a series of marriage-like relationships in Australia, Dr Collins states that this ability to form long-term relationships is ‘protective’ with regard to the risk of recidivism. Mr Poynder noted that the exit report on BHYK’s completion of the Cognitive Skills Program (completed on 5 March 2004) indicates that he has good insight into the relationship between the offence of manslaughter, of which he was convicted, and his impulsive and risk‑taking behaviour. Dr Walker agreed in cross-examination that some of the information available to him in making his assessment was inconsistent with that assessment.
Mr Kennett, for the Minister, said the documentary evidence suggests that BHYK was involved in a number of incidents involving threats, intimidation and violence, although not necessarily instigated by him. There is no unfairness to BHYK in the Tribunal concluding that his time in custody/detention has been punctuated by various incidents, albeit that none are particularly serious in themselves. Mr Kennett noted, nevertheless, that BHYK has a history of violence.
Mr Kennett pointed to the fact that BHYK has had four marriage-like relationships in Australia and has 14 children here, but has had no contact with any family members for the past 10 years. This suggests a lack of connection with the community and a lack of the usual stabilising factors. Mr Kennett suggested that BHYK is a product of his early life and culture and that, as Dr Collins recognised, cultural considerations should form an important part of any risk management plan.
Mr Kennett said the risk of BHYK reoffending is unacceptably high. The assessments made by the two experts are not far apart and even Dr Collins’ assessment – that BHYK’s recidivism risk is moderate – is sufficient to satisfy the test set out in WKCG. Moreover, Dr Collins emphasised that her assessment was in the context of risk management being required.

The Tribunal’s Reasoning

BHYK’s criminal history in Australia dates from 1986 and includes a conviction for the offence of grievous bodily harm and convictions for various offences related to assault and damage to property, as well as two convictions for possession of dangerous drugs. He has one conviction for a very serious offence – that of manslaughter in relation to the death of his de facto spouse in late May 2000, to which he pleaded guilty.
De Jersey CJ, sentencing BHYK in the Queensland Supreme Court on 17 September 2001, found BHYK’s action in hitting his de facto spouse about the head with a child’s bicycle “was a spontaneous act and you were drunk at the time”. We note that the Police Service Court Brief, dated 28 May 2000, refers to a witness who stated that BHYK took hold of the victim’s right arm and punched her in the face and then picked up a child’s bicycle in one hand and hit the victim over the back of the head with the bicycle, with the victim then falling unconscious to the ground. The Brief also states that “the blood spatter pattern on the bicycle indicates that the victim was hit several times over the head with the bicycle”.
De Jersey CJ sentenced BHYK to imprisonment for seven years with a non-parole period of two and a half years. However, an assessment dated 5 July 2002 stated that “he currently appears as an unacceptable community risk” given a perceived high risk of his reoffending and failure to progress from his high security classification to a low/open classification in an open custody environment. Parole was refused.
Further consideration was given to remission of BHYK’s sentence in late 2004/early 2005 and, on 31 January 2005, a remission of sentence was refused. The delegate was not satisfied that that discharge did not pose an unacceptable risk to the community. The delegate noted that while BHYK’s behaviour was generally acceptable, there were comments about BHYK’s aggressive behaviour, two reportable incidents of assault in which BHYK was the perpetrator (on 24 November 2000 and 27 July 2002), and “a major breach for interfering with cell monitoring devices”. The delegate therefore found that BHYK’s institutional conduct had not been satisfactory.
The Tribunal accepts that when considering the reports on incidents involving BHYK during both his time in prison and in immigration detention, we must be mindful that these reports do not seem to have been fully explored with BHYK and most were not put to him during the hearing. We must also be conscious of the fact that the tensions experienced in custody and detention are often more extreme than those experienced in the community. Nevertheless, the evidence concerning the incidents in which BHYK has been involved both in custody and detention indicates that while generally cooperative and polite, he can be aggressive and abusive when confronted by the inevitable frustrations of the system and of other inmates, and that he has sometimes used threats in order to try and get his own way.
We note that BHYK has undertaken a number of rehabilitation programs: anger management (completed on 8 April 2002), substance abuse (8 May 2002), cognitive skills (5 March 2004), and ‘Ending Offending’ (13 August 2004). Reports on his conduct during these programs indicate that he benefitted from the programs and gained a greater insight into his behaviour. However, later incident reports indicate that he may have an ongoing problem with anger management, and when considered in the context of evidence of his impulsiveness and past history of violence, this is obviously a matter of significant concern.
In the past, BHYK’s behaviour has been exacerbated by the effects of alcohol and marijuana. He has now been in custody/detention for 10 years and his evidence, which is uncontradicted, is that he has been free of alcohol and drugs during this period. He says that if released into the community, he would not go back to alcohol and drugs (or nicotine).
BHYK said that over the 10 years he has been in custody/detention, he has had no contact with his family. His evidence is that he has been visited by one friend and has also had regular contact with his friend, the Salvation Army prison chaplain in Brisbane, who provided a supporting letter to the Department faxed on 23 December 2008. During the years BHYK has lived in Australia, he has had four marriage-like relationships and has 14 children as a result. He has had no contact with any of his children or other family during this 10-year period, although he says he would like to re-establish contact with his children if released into the community. BHYK says that if he is released, his friend the chaplain will assist in finding him accommodation in a house and otherwise supporting him.
In his letter to the Department faxed on 23 December 2008, the chaplain noted that he first met BHYK in January 2005 when BHYK joined a Bible group. The chaplain set out a four‑stage plan to assist in BHYK’s rehabilitation in the community. He refers to BHYK’s artistic talents and both to the possibility of BHYK selling his paintings and to his running art classes and assisting others in the sale of their artworks.
Dr Collins, who emphasised the importance of risk management in BHYK’s rehabilitation, said she would want to see this plan updated and further details of the counselling proposed. She assessed BHYK’s risk of recidivism as moderate and was concerned to ensure that if BHYK is released into the community, this risk would be properly managed in a supportive environment. She considered his displays of aggression to be culturally influenced and that his behaviour indicated bravado without there necessarily being a genuine intent behind the threats made. She recommended that any risk management program should include a cultural component.
Dr Walker said that in his opinion BHYK has a personality disorder characterised by a persistent pattern of abnormal emotions and behaviour. Dr Walker said BHYK’s history of violence could not be explained by cultural influences. He said BHYK is “at high risk of further violent offences” and stated that this risk “cannot be managed by psychiatric and/or psychological treatment”. However, in oral evidence Dr Walker acknowledged that the reports from the Queensland Department of Corrective Services indicate that BHYK did benefit from the rehabilitation programs undertaken in 2002 and 2004 while in prison. Dr Walker also acknowledged that there is treatment that could assist BHYK, but doubted that BHYK could access this because of a lack of resources.
In terms of whether there is a real or significant risk or possibility of harm to one or more members of the Australian community, we find the evidence supports a conclusion that there is such a risk and we are ‘comfortably satisfied’ with making such a finding. On the evidence of Dr Walker, there is a high risk of BHYK reoffending. On the evidence of Dr Collins, there is a moderate risk. Her opinion is, however, in the context of there being a proper management plan in place and a supportive environment.
We are not satisfied from the evidence before the Tribunal that adequate arrangements of the kind contemplated by Dr Collins have been made, noting that BHYK has had no contact with his 14 children in Australia nor, apparently, with any other family members, over the past 10 years during which he has been in custody/detention. The only friend with whom he remains in regular contact is the Salvation Army chaplain in Brisbane who wrote a supporting letter to the Department faxed on 23 December 2008 setting out a four-stage plan for BHYK’s rehabilitation. We have no update on that plan and no evidence from the chaplain. Thus, we are not satisfied with present plans for the ongoing rehabilitation that BHYK would need in the Australian community.
While we acknowledge that the risk of recidivism tends to decline with age, and we note BHYK’s stated intention that he will not return to the use of alcohol or drugs, this is untested, and given evidence as to his sometimes being impulsive and aggressive, we find there is a real risk of his reoffending and of consequent harm to members of the Australian community.
We note that the consequence of our decision will be that BHYK is liable to be returned to Indonesia because of the negation of Australia’s obligations to him under Article 33 of the Refugees Convention. Ultimately, however, this is a matter for the Minister.
The Tribunal affirms the decision of the delegate that BHYK constitutes a danger to the Australian community in accordance with Article 33(2) of the Refugees Convention.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President and Mr DM Connolly AM, Member.

Signed: .......[sgd]...................................................................
Associate

Date of Hearing:  23 August 2010
Date of Decision:  2 September 2010
Applicant representative:                   Mr M McCrudden, Craddock Murray Neumann Lawyers

Applicant counsel:  Mr N Poynder
Respondent representative:              Ms K Hooper, DLA Phillips Fox
Respondent counsel:  Mr G Kennett