RRFM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 238

RRFM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 238 (22 February 2023)
Division:GENERAL DIVISION
File Number: 2022/4192
Re:RRFM
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Dr Stewart Fenwick, Senior Member
Date:22 February 2023
Place:Melbourne

The Tribunal sets aside the reviewable decision dated 27 April 2022 and remits the matter to the Respondent for reconsideration in accordance with a 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 – consideration of phrase ‘convicted by final judgment’ – offending as a child resulting in no conviction recorded can be considered – seriousness and nature of offending – risk of reoffending – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Children, Youth and Families Act 2005 (Vic)
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)
Spent Convictions Act 2021 (Vic)
Cases
FSKY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 2
Hartwig v PE Hack [2007] FCA 1039
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Maxwell v The Queen [1996] HCA 46
RRFM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3602
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1273
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27
SZATL v Minister for Immigration and Border Protection [2017] HCA 34
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
ZGPR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1360
Secondary Materials
Dr Paul Weis, UNHCR, The Refugee Convention, 1951: The Travaux préparatoires analysed with a Commentary (UNHCR, 1990)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
22 February 2023
background

RRFM applied to the Tribunal on 25 May 2022 for review of a decision of a delegate of the Respondent Minister, dated 27 April 2022, that he did not satisfy the criterion in s 36(1C) of the Migration Act 1958 (Cth) (the Migration Act). That decision determined that the Applicant was considered to have been convicted of a particularly serious crime and was a danger to the Australian community. For this reason, he was refused a protection visa.
The Applicant is a national of Afghanistan and is of Hazara ethnicity. Born in 1997, he lived for some years with his mother and siblings after his father fled to Pakistan in 2001. The family also fled to Pakistan in around 2004, and RRFM was not reunited with his father until arriving in Australia at the age of ten.
RRFM previously had his humanitarian visa cancelled because of his history of criminal offending. The decision not to revoke the visa cancellation was upheld in a separate decision of the Tribunal on 15 September 2020 (RRFM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3602), which decision was upheld in two subsequent appeal decisions. The issue in these appeals was whether the Tribunal had considered the risk of prolonged or indefinite detention, and did not raise for consideration matters of direct relevance to this application.
RRFM has appeared in Magistrates Courts in two different states on numerous occasions between September 2016 and February 2020, primarily in relation to driving, dishonesty and other property offences. His criminal history also includes charges of assault and weapons-related offending. RRFM has been sentenced to imprisonment, placed on community corrections orders, and also has had substantial fines and payment of compensation imposed due to his dishonesty offending.
Particularly relevant to the present matter is the Applicant’s early offending for which he appeared in children’s courts in 2015 and 2016. RRFM appeared there in relation to offending including robbery, intentional destruction of property, contravention of a family violence intervention order, and extortion with threat to kill. For this offending, RRFM was released on a youth supervision order in 2015, which he breached. This outcome was recorded as being without conviction, as was another instance of offending heard before a Magistrate, also in 2016.
The Applicant was represented before the Tribunal and lodged a Statement of Facts, Issues and Contentions (SFIC), and a Reply, as well as a bundle of evidence including various statements in support (A), and the report of Mr Tim Watson-Munro, Consultant Psychologist, dated 15 August 2022. Evidence was given at the hearing by RRFM, Mr Watson-Munro, the Applicant’s father (F), and two referees (W1, and W2). During the course of the hearing, information of medication taken by RRFM was also received and accepted into evidence (Exhibit A1). The Applicant also lodged a Reply to the RSFIC (Reply). As noted below, closing submissions were lodged (ACS) and a Reply to the Respondent’s closing (ACSR).
The Respondent lodged a SFIC, documents under s 37 of the Administrate Appeals Tribunal Act 1975 (Cth) (T) and supplementary T documents (ST), and tender bundle (TB). The ST documents are comprise the report of Ms Lisa Jackson, Psychologist, dated 4 August 2020, which was in evidence before the Tribunal hearing RRFM’s visa revocation matter, and statements of support that were also before the Tribunal on that occasion. The ST documents also include a bundle of incident reports including those relating to RRFM’s time in detention since that prior decision was finalised. The TB documents consist of material produced under summons. The Respondent also lodged written closing submissions (RCS).
Procedural history
Both parties lodged materials in the days preceding the hearing: in the case of the Applicant this was his Reply, dated 1 December 2022; in the case of the Respondent this was the bundle of incident reports forming part of the ST documents, lodged 2 December 2022. Further, the day prior to the hearing the Respondent submitted that the matter should be adjourned and, accordingly, a Directions Hearing was scheduled to consider this proposal.
The adjournment request was based upon several issues, including the pending appeal to the High Court of Australia of the decision in Thornton v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] FCAFC 23 (Thornton). Given the nature of RRFM’s very early offending, I had in any event raised with the parties the possible implications of the decision in Thornton. The relevance of this inquiry in RRFM’s case is principally because of his early offending history.
The Respondent also cited in support of the adjournment request the Applicant’s reference in his Reply to the possible reliance upon international sources in construing legislation, and to the issue of witness availability. The Applicant submitted in writing and at the Directions Hearing that the matter should proceed.
Questions of statutory interpretation are indeed prominent in this matter. These have ultimately been addressed at length in the parties’ SFICs and their written closing submissions, and I will turn to this issue later in these reasons. I determined at the Directions Hearing that seeking written closing submissions, rather than an adjournment, was the better approach. This decision was strongly influenced by the availability of Mr Watson-Munro. While his already very restricted availability to appear at the hearing was relied on in the Respondent’s request for an adjournment, the witness also had quite limited capacity to appear in early 2023. The balance of convenience therefore lay in proceeding with the scheduled hearing, in the interests of offering RRFM some certainty as to an outcome in a reasonable time.
I note also that the Applicant raised objection at the hearing, and in an expanded form in closing submissions (ACS [5]-[8]), to the Tribunal admitting the bundle of incident reports (ST3) into evidence. The Respondent submitted at the hearing and in its written closing submissions (RCS [5]-[7]) that it agreed the Tribunal should not have regard to the documents, and/or admit them into evidence.
The T documents include a summary of incidents in detention (T12, 296) comprising reports involving RRFM between January and September 2021. The date range for incidents identified in the material at ST3 is February 2021 to July 2022. This material therefore largely postdates the existing incident reports and, more importantly, was produced in two bundles on 2 December 2022, and on the second day of the hearing, 8 December 2022.
Section 33 of the AAT Act includes several provisions of relevance here, including: that matters of procedure are within the discretion of the Tribunal (s 33(1)(a)); that it is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate (s 33(1)(c)); and, a decision-maker must use their best endeavours to assist the Tribunal (s 33(1AA)). The obligations for Respondent parties to lodge material documents are found in ss 37 and 38AA. I note that the Applicant also cited authorities on aspects of procedural fairness, to the effect that RRFM may suffer prejudice should the Tribunal formally admit the material in ST3.
It is well accepted that in making a decision the Tribunal is to be informed by the most recent, relevant evidence available. This approach militates somewhat in favour of having regard to incident reports, particularly in an inquiry of the kind arising here, being whether the Applicant can be considered a danger to the community. However, in this case the matter was conducted on the basis that the Respondent Minister did not rely on the material in ST3. That is, witness examination at the hearing was largely conducted without reference to these reports (ACS [6b]).
I consider that some prejudice may indeed arise for RRFM were I to critically examine the reports in order to either formally admit them, and then afford them little or no weight, or alternatively seek to rely upon them in a substantive way. In a practical sense, this might arise simply from the potential need to re-open evidence in order to more thoroughly evaluate their contents (thereby raising an issue of the kind identified in Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396). I also consider that adding to the Applicant’s time in detention, to test material is also contrary to my earlier decision to proceed, rather than adjourn.
On balance, therefore, and acknowledging the responsibility of the Respondent to assist the Tribunal, I find that the best course is not to admit, or rely upon, the material in ST3.
legislation
There are a series of interlinked provisions and definitions in the Migration Act concerning eligibility for a protection visa. Relevantly, s 36 provides:
(1A) An applicant for a protection visa must satisfy:
(a)both of the criteria in subsections (1B) and (1C); and
(b)at least one of the criteria in subsection (2).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b) see section 5M.
‘Particularly serious crime’ is addressed as follows in s 5M:
… paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence …
‘Serious Australian offence’ is further defined in s 5 of the Migration Act as follows:
… an offence against a law in force in Australia, where:
(a) the offence:
(i)involves violence against a person; or
(ii)is a serious drug offence; or
(iii)involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
The decision of a Deputy President of the Tribunal in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (WKCG) in respect of an earlier version of this legal framework is frequently cited as it provides useful guidance. I note that as a matter of interpretation, the fact of conviction and whether a person constitutes a danger are understood to be separate considerations (WKCG at [29]). I will return to WKCG and other relevant authorities below.
issues
There are, accordingly, two issues to be considered. First, whether RRFM has been convicted by final judgment of a particularly serious crime. Second, if so, whether he is a danger to the Australian community.
threshold offending
As noted above, both parties have advanced substantive contentions with respect to whether certain of RRFM’s offending properly qualifies for consideration as particularly serious offending. It is appropriate before proceeding further to set out a summary of the Applicant’s offending history. I note that following the conclusion of the hearing I sought the assistance of the Respondent in providing a contemporary version of RRFM’s nationally coordinated criminal history check (T2d). The original version was based on a report printed in 2019, pre-dating the spent convictions legislation in Victoria. Both versions are in fact substantively the same, and RRFM’s earliest offending remains part of the check.
The reports provide the following information:
(a)2015: a youth supervision order was imposed by a Children’s Court for 12 months in relation to charges of armed robbery, robbery, intentionally destroy property, contravene family violence interim intervention order, obtain property by deception, and extortion with threat to kill; for which no conviction was recorded;
(b)2016: the youth supervision order was confirmed due to its breach, and RRFM also appeared in the Magistrates’ Court on a charge of without excuse enter private place, resulting in a good behaviour bond, for which no conviction was recorded;
(c)2017: RRFM was convicted of a series of driving charges, adjourned for 12 months, had his license cancelled and was sentenced to a 12-month community corrections order (CCO) for further driving charges, possess controlled weapon without excuse, fail to answer bail, and unlawful assault. He was also sentenced to 6 months’ imprisonment and ordered to pay compensation of $17,600 for dishonesty charges;
(d)2018: a further conviction of 12 months’ imprisonment suspended for 18 months was imposed for additional dishonesty offences, breach of which led to RRFM’s arrest and imprisonment;
(e)2019: convicted and discharged in respect of a driving offence and sentenced to an aggregate 2 year’s imprisonment together with compensation orders in excess of $50,000 for 12 charges of obtain property by deception, several driving offences, intentionally damage property, theft charges, and contravention of his CCO. RRFM was also sentenced to an aggregate 30 days’ imprisonment concurrent with his prior sentence, and ordered to pay compensation of $685, related to charges of possess controlled weapon without excuse, unlawful assault, and intentionally damage property. An additional sentence of 2 month’s imprisonment, also to be served concurrently, together with a compensation order, arose from a separate charge of obtain property by deception; and
(f)2020: sentenced to 5 months’ imprisonment, also concurrent with existing sentences, and a compensation order, for a charge of obtain property by deception.
The original decision maker considered that 29 of RRFM’s offences met the legislated test of ‘serious Australian offence’ (T3, 100). After considering them in some detail, the decision maker determined that four offences fell within the definition of ‘particularly serious crime’ (T3, 105). Similarly, the Respondent contends (RSFIC [80]) that four instances of offending meet this test: extortion with threat to kill; armed robbery; and two counts of intentionally damage property. The Respondent identifies the maximum penalties for these offences as, respectively: 15 years; 25 years; and 10 years (RSFIC [13], [18.1]). The Respondent submits that each of these instances of offending was attended by violence (RSFIC [82]).
The Applicant contended originally that none of these four offences engage s 36(1C) or (2C)(b) of the Migration Act (ASFIC [19]). It is also contended that consideration cannot be given to offences committed while RRFM was a child in respect of which no conviction was recorded (ASFIC [20]; Reply [3.2]). The Applicant now concedes that should the Tribunal find that it can consider the offending by RRFM as a minor, these two instances would in fact meet the statutory test (Reply [3.3]). The Applicant does not dispute he was convicted of two instances of intentionally damage property, but contends that the offending did not involve violence, and was otherwise not of a particularly serious kind (ASFIC [31]; Reply [4]).
Intentionally damage property
I will address this offending first because a finding against the Applicant on these convictions may reduce the overall significance of the more complex task of considering the offending as a minor.
RRFM was sentenced on 16 May 2019 in relation to the subject charges of intentionally damage property. It appears from the transcript of sentencing remarks (T5) that the majority of time was consumed by confirming restitution orders in respect of the property related offending. There is a single reference (T5, 143) to ‘an example, at least of threatening behaviour by you’, but no other reference to violent conduct associated with the numerous charges dealt with.
When asked in evidence, RRFM denied committing acts of violence. He did, however, acknowledge his substantial criminal record, and the contents of sentencing remarks.
In cross-examination, RRFM was taken to specific paragraphs of the decision of the Tribunal in his earlier visa revocation matter (T11) that dealt with his offending. The Tribunal describes a violent incident in July 2017 at the home of a young woman, whom the Applicant thought had made prank calls to him threatening his sister (T11, [45]). He is also described as using a sledgehammer to damage a car at the property, and then using it to break a bedroom window. RRFM is said to have returned to the scene later, surrendering to police.
The Applicant stated at the hearing that he knew the woman in question from school, but could not recall a great deal about the incident. He stated that he was drunk and that these were the kind of decisions he made in that state. RRFM was then taken to the preliminary police brief (TB4, 138) which indicates the woman did not know RRFM, and that the Applicant made a call at the time in which he is said to have made threats against the woman and her family. RRFM reiterated he knew her as that was how he was able to find her address, but he otherwise accepted it was possible the police report might be accurate. He also acknowledged the incident took place less than three months after the imposition of his CCO.

The Applicant submits that the issue arising is whether the offending either involves violence against a person or serious damage to property (ACS [40]). He contends that ‘involves’ means ‘related to the elements of the offence’, and it is not permissible to ‘bundle up’ the surrounding circumstances (ACS [42]). In support of this argument a decision of the Tribunal is cited that itself draws support from a decision of the Full Court of the Federal Court (ZGPR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1360, at [64]-[69], drawing upon SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40, (SZOQQ) at [52]). In short, these decisions are raised as authority for the view that mere damage to property is insufficient to meet the statutory test, and that the damage must be serious damage.
It is also contended that while the Applicant does not deny any verbal threat, it was unrelated to the elements of the offence, and does not amount to violence against a person which, it is submitted, means ‘unlawful exercise of physical force’ (ACS [42]-[43]). This approach, it is argued, is also consistent with the fact RRFM was ordered to pay $685 in compensation, when the offence carries a maximum penalty of 10 years’ imprisonment (ACS [44]).
The Respondent contends that there is authority for the view that the definition of serious Australian offence is directed to considering whether an offence ‘involves’ particular factual characteristics, rather than to particular elements of a crime, and that ‘Violence does not encompass only physical violence’ (RCS [43]-[44]). In brief, it is contended that the conduct including verbal threats amounted to ‘intimidatory behaviour that would have caused fear of harm’ and therefore the offending involved violence to the victim (RCS [45]).
The Respondent contends, in the alternative, that the intentional damage property offences were particularly serious as they involved a weapon, late at night with a vulnerable victim (RCS [47]). Further, it is contended by the Respondent that the compensation does not reflect the seriousness of the offending, only the value of property damaged (RCS [48]).
The Respondent cites the decision of Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90 (Vu) in support of the argument that violence is not necessarily restricted to physical acts. This was a decision addressing certain findings of the Tribunal in a visa cancellation matter involving acts amounting to a breach of an apprehended domestic violence order. I note the following in the judgments of O’Callaghan J and Katzmann J: under domestic violence legislation, violence is not limited to acts of physical violence, and may be committed by stalking and intimidation ([52]-[53]); whether in any given case violence is to be understood as including non-physical harm is dependent upon statutory language ([59]); and, in this case, there was evidence that the conduct in question in fact had the effect of causing intimidation and fear in the victim, albeit minds may differ as to whether such conduct is ‘serious’ ([4]).
Despite the significance of the property damage offending in the context of this matter, it is illuminated by only a relatively modest amount of evidence. As noted, there is very little said about this incident in the sentencing remarks, albeit I accept that the sentencing Magistrate considered some aspect of RRFM’s conduct to be threatening. It is also somewhat unclear what weight to place upon the contribution made by this offending to the aggregate sentence of 2 year’s imprisonment. I consider it of significance that the conduct of RRFM overall did not apparently result in charges in the form of assault or a weapons charge (that said, it appears from the transcript that certain charges were withdrawn before sentencing, but the wider material does not reveal their nature). I also consider the modest quantum of the compensation awarded to be relevant.
While the Respondent is correct to highlight that I am not confined only to the term serious Australian offence, I do not consider this offending to constitute either violence against a person, nor serious damage to property. The Respondent’s contentions as to the potential impact of some or all of RRFM’s conduct at the time of the offence on any other person is entirely speculative. It is not supported, as I have noted, by specific relevant charges, and the Magistrate’s reference to intimidation is not explained by any other supporting material, although deserves some weight.
These evidentiary issues are sufficient, in my view, to negate the Respondent’s submissions. I also do not consider them to be strengthened by reference to the reasoning in Vu. This decision arises in the context of a particular kind of offending, unrelated to that in issue here. If anything, the few elements that I have summarised above tend to reinforce the need, at least, for a factual basis for a finding about the impact of offending conduct, as well as highlighting that violence is a context-dependent concept.
I accept the Applicant’s arguments with respect to the issue of property damage. I am assisted in this finding by the reference to prior decisions, cited above, particularly that of the Full Court of the Federal Court, about interpretation of the term “serious damage to property” (SZOQQ). It is also relevant that this decision involves the breaking of windows. I have noted that it is not clear how this offending may have contributed to the aggregate term of imprisonment, but the value of the compensation is somewhat indicative of the seriousness of the damage, being at the low end of seriousness.
These factors also relevantly inform consideration of whether, nonetheless, the acts amounting to intentionally damage property may constitute particularly serious crime. Due to the paucity of objective evidence about all of the circumstances, including as I have noted, the impact on those involved, I hesitate to offer a particular characterisation of the incident. It might be fair, however, to describe it as disturbing, threatening (in the words of the Magistrate), and involving the wanton destructive of private property.
There is, importantly, a necessary and meaningful qualification arising from the word ‘particularly’. Therefore, while this offending might appropriately attract the description, ultimately, of ‘serious’, I do not consider in all the circumstances, that it can properly be categorised as ‘particularly’ serious.
For these reasons, I find that the convictions for intentionally damage property do not constitute a serious Australian offence, nor a particularly serious crime.
Offending as a minor
The material before me regarding the offending of extortion with threat to kill and armed robbery is of a similar scope to that for the property offences. The decision maker refers to passages from the prior Tribunal decision, as well as to information provided by RRFM himself in the protection visa application process (T3, 104). The RSFIC ([15]) also identifies relevant police records (TB4, 208-213).
In cross-examination, RRFM broadly agreed with the description of these incidents as set out in the decision of the Tribunal that determined his visa revocation matter (T11). He stated that he considered the summary of the armed robbery offending ([41]) to be accurate. The decision states that the youth supervision order arose from an incident in which the Applicant was present when a friend held a knife to the victim’s throat and took their money. RRFM stated in that hearing, reportedly, that he could not recall demanding the victim’s phone, nor telling the victim he would be shot if he reported the matter.
Neither the Tribunal nor the Applicant in evidence were taken to the police report of this incident, and it does not appear to be referenced in any written submissions. From the description of the circumstances in the prior Tribunal decision, the relevant report appears to be that at TB 211-212. This report describes two caucasian males in their mid-twenties robbing a person of their valuables as that person sat in their car waiting for a planned appointment to buy a mobile phone. One of the males is said to have held a kitchen knife to the victim’s throat. It appears that police inquiries indicated that RRFM may have been involved by making the arrangements for the sale of the phone. Whether or not the Applicant was physically present during the robbery is unclear.
The Applicant agreed in evidence that he remembered the extortion with threat to kill charge, when referred to the earlier Tribunal decision (T11, [42]). There, RRFM is described as saying this was one of his ‘stupidest mistakes’, and that the charge related to a situation in which a friend had given him $20,000 which the Applicant lied about investing. This was said to have caused an argument in which ‘the Applicant said he threatened his friend and ‘said some stuff’’. In cross-examination at the hearing, RRFM stated that he could not ‘100%’ recall this incident and could not agree or disagree with the description, because it was a long time ago.
The police report (TB, 208-210) describes a scenario in which RRFM induced a person he had known briefly to invest in a business which he did not in fact have an interest in. When confronted later, RRFM admitted that it was a scam and social media posts indicated he had bought a car with the money. The report states that after the victim made a police report, RRFM threatened to kill him and his family, and the victim then asked police to take no further action. The Applicant then negotiated with the victim over a period of time about the return of the funds, including apparently inducing the victim to perform certain possible offences. RRFM later attended the police station by appointment and made partial admissions.
The Applicant submits that Thornton found that a decision-maker may not have regard to a conviction that falls within the scope of s 85ZR(2) of the Crimes Act 1914 (Cth) (the Crimes Act) (ASFIC [21]-[22]). It is contended that the reasoning of the Court in that decision applies in this case because the legislation under which RRFM was dealt with, the Children, Youth and Families Act 2005 (Vic) (the CYF Act), operates in a manner similar to the Queensland legislation considered in Thornton (ASFIC [25]-[26]). The Applicant observes that the definition of ‘conviction’ in s 3 of the CYF Act ‘includes a finding of guilt by the Court, whether or not a conviction is recorded’, and argues, generally, that the legislation is beneficial in nature (ASFIC [26(e)]).
Contentions advanced by RRFM are substantially expanded in his closing submissions, under two limbs. First, it is submitted that the term ‘convicted by final judgment’ in s 36(1C) of the Migration Act means ‘the formal record of a conviction’, being ‘the formal judicial act or order at the conclusion of a sentencing process’ (ACS [21]). Submissions note that the term ‘conviction’ is not defined in the Migration Act, and has no fixed meaning at common law, citing among other cases Maxwell v The Queen (1996) 184 CLR 501 (ACS [13]-[14]). It is also contended, specifically, that in the context of s 36, but also in other provisions of the Migration Act, a distinction is drawn between adjudication of guilt and passing a sentence (ACS [17]-[18]). The construction of the term for which the Applicant contends, being a ‘formal record of conviction’, is clear and objective, and supports consistent decision making (ACS [20]-[21]). Support for the Applicant’s approach is also said to be found in the wider international law context (ACS [22]-[27]).
In the second limb of the submissions, the Applicant restates the contentions raised in respect of the CYF Act (ACS [33]). It is then contended that the offences in question are to be taken to be spent convictions under the Spent Convictions Act 2021 (Vic) (the SC Act) and the effect is that the ‘without conviction’ outcome means that it is not a conviction for any purpose (ACS [34]).
The Respondent contends that conviction refers to a finding of guilt, thus arising at the stage of the adjudicative process anterior to sentencing (RCS [8], [11]-[12]). It is further contended that without conviction findings are a creature of statute, and thus there is limited scope to refer to common law interpretations of ‘conviction’ (RCS [14]-[15]). The Respondent also notes that the term is used in different ways in different parts of the Migration Act, and any apparent inconsistencies are of limited relevance (RCS [16]-[17]). It is then contended that in s 36 of the Migration Act, the legislature chose to use the word ‘convicted’ in the sense of a finding of guilt, being the step in between offence and sentence (which terms are adopted in other sections) (RCS [18]-[19]).
Finally, the Respondent contends that:
(a)international law should not guide interpretation of the term (RCS [20]-[23]);
(b)a definition of ‘convicted’ that differs depending upon differing sentencing regimes under state laws was not intended by the legislature, and that the Respondent’s construction does not lead to any uncertainty (RCS [24]-[25]); and
(c)the purpose of s 36 of the Migration Act is to protect the Australian public and this is consistent with a broader reading of the term ‘conviction’ to mean the finding of guilt, rather than to accommodate different sentencing outcomes (RCS [27]).
With respect to the second limb of the Applicant’s arguments, the Respondent contends that s 85ZR(2) of the Crimes Act does not apply in this case (RSFIC [47]). Reference is made here to the reasoning in the decision of Hartwig v PE Hack [2007] FCA 1039, which is cited in the Full Court decision in Thornton at [12]. In short, the Respondent submits that the CYF Act does not have the effect that the Applicant says it has (RSFIC [58]; RCS [29]-[32]). In respect of the effect of the SC Act, the Respondent contends that this legislation says nothing of whether a conviction, when spent, is to be taken never to have occurred at all (RCS [35]). Further, it is contended that the Crimes Act distinguishes between pardons (s 85ZR) and spent convictions (s 85ZV) (RCS [36]).
One additional matter is raised in the Applicant’s Reply ([Part C]). Here it is contended that it may be permissible to have regard to wider international law material in interpreting s 36 of the Migration Act,as it is well established that where an Act uses words from a treaty, it will be presumed they have the same meaning as in the treaty.
The court in Thornton specifically considers the effect of certain provisions in Queensland legislation in the context of an offending history that included juvenile offending and offending without any conviction being recorded. It is explained in the lead judgment that the Crimes Act delineates ‘the extent to which the disclosure of convictions is to be treated by decision makers under the Migration Act’ (at [13]). Accordingly, spent convictions are not protected from disclosure in relation to any decision other than in application for registration as a migration agent (by reference to ss 85ZV and 85ZZH) (at [15]-[16]). By contrast, a decision-maker who takes into account a conviction captured by s 85ZR, takes into account an irrelevant consideration (at [17]).
This latter provision addresses the situation of a person with convictions that are subject to a pardon in a case of wrongful conviction (s 85ZR(1)) or any other Commonwealth, State, Territory, or foreign law that provides that ‘a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country’ (s 85ZR(2)).
I consider it likely that RRFM’s offending as a minor is to be considered a spent conviction under the SC Act, by the combined effect of ss 8 and 9 (being that the conviction period of 5 years for a conviction under the CYF Act has expired). I am also not able to identify a provision in the SC Act that operates in the manner of the legislation that was the subject of consideration in Thornton, being a provision that might engage s 85ZR of the Crimes Act. I also note that the definition of ‘conviction’ in the SC Act is a finding of guilt by a court for an offence, whether or not a conviction is recorded (s 5).
I am also unable to identify any provision in the CYF Act that has the effect contemplated by s 85ZR of the Crimes Act. I note that the definition of ‘conviction’ in this legislation includes a finding of guilt whether or not a conviction is recorded, albeit the term arises in Part 5.4 which deals with appeals.
I also note that ‘conviction’ is defined in the Crimes Act for the purposes of its use in the provisions outlined above, (ss 85ZR and 85ZV) as meaning if a person has been convicted and found guilty of an offence, but discharged without conviction (s 85ZM).
The submissions of the parties are framed around the reality that ‘conviction’ is not defined in the Migration Act, and rely, appropriately, upon recognised principles of statutory construction. The task is complicated by additional factors which are: the lack of a fixed meaning of conviction at common law, and the fact that we are concerned here with a term from criminal law in the context of an Act whose object is regulation of the movement of people (s 4(1)). Although I note that this object is to be advanced, in part, by providing for the removal of persons whose presence in Australia is not permitted under the Act (s 4(4)).
The particular challenge arising here from the variability in the interpretation of ‘conviction’ is that its ‘natural and ordinary meaning’ is not readily grasped (SZATL v Minister for Immigration and Border Protection [2017] HCA 34 at [14]) (SZTAL). The reality appears to be that modern approaches to sentencing have weakened the ‘traditional sequential approach (guilt, conviction, sentence and execution)’ (as noted in research cited in the RCS ([10]).
The issue has been encapsulated in the idea of ‘constructional choice’ in which it has been said that discerning statutory purpose is an integral step (SZTAL at [37]-[39], per Gageler J). I note that ‘context’ for the purposes of statutory interpretation is also read widely (SZTAL at [36]), and, further, that an interpretation of a provision that best achieves the purpose or object of an act must be preferred (s 15AA, Acts Interpretation Act 1901 (Cth)). Returning to the provision in the legislation, it has been held that the mischief or subject dealt with by s 36(1C) is ‘the protection of Australia and the Australian community from persons who by reason of their past criminality pose a danger to the Australian community’ (KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 , at [52]).
More simply, though, too much emphasis on the key word ‘conviction’ might tend to obscure the need to construe it in the context of the statutory phrase ‘convicted by final judgment’. The Applicant appears to be correct in contending that ‘by final judgment’ has been deliberately selected in s 36. It is indeed distinct from other terms used in different provisions of the Migration Act that address aspects of criminal procedure. It is also observed (ACS [22]), correctly, that ‘convicted by final judgment’ has its origins in international law.
While I generally agree with the Respondent that recourse should not readily be had to international legal material in construing the provision, I consider that the Travaux préparatoires of the Refugee Convention[1] is probably the definitive source about the nature and purpose of the phrase. It would appear from the record of the drafting of art 33 (which at that time was draft art 28) that the phrase ‘convicted by final judgment’ was intended to convey the situation in which the criminal process had concluded, in the sense that there was no appeal process available, and any appeal period had elapsed.
[1] Dr Paul Weis, UNHCR, The Refugee Convention, 1951: The Travaux preparatoires analysed with a Commentary (UNHCR, 1990). Available at: type="1">
I make this reference to the origin of the phrase because of the particular challenges with interpretation that I have identified above. I consider that this history reinforces that a somewhat simpler approach to interpretation of the phrase is likely to provide the most satisfactory result; the words have in fact been described as ‘plain and simple English’ (WKCG at [25]). That is, that a plain reading of the phrase is the most appropriate, and that it means a situation in which a criminal prosecution has reached its ultimate conclusion. I also add that the repetition in state and federal statute that the term conviction includes where no conviction is recorded, and consider that this tends to reinforce the logic of this approach in this context.
Following the submission raised in RRFM’s Reply, I note the discussion in the judgment of Flick J in SZOQQ (at [4]-[8]). His Honour there sets out various authorities concerning the interpretation of language derived from an international treaty. In brief, they explain that a treaty shall be interpreted in accordance with the ordinary meaning of its terms, and a statutory provision that corresponds with a provision in a treaty should be construed in accordance with that meaning. The court in SZOQQ, and similarly in other relevant authorities, addressed the question of whether a balancing exercise arises in a consideration of danger to the community. I consider the same approach can and should be taken with respect to the companion phrase ‘convicted by final judgment’, albeit it does not appear to have been the subject of judicial attention.
It follows from the above, that I consider that I am in fact required to take into account RRFM’s offending as a minor that resulted in no conviction recorded. Therefore, I must make a finding with respect to whether the offence of extortion with threat to kill, or armed robbery are to be considered particularly serious crimes.
I noted briefly above the Applicant’s contention that the offences of extortion with threat to kill and armed robbery qualify as particularly serious crimes. This is on the basis that the offending involves violence against a person, within the meaning of ‘serious Australian offence’ (s 5(1)), and that it is not in dispute that each are punishable by a term of more than three years’ imprisonment (Reply [3.3]).
I set out above what material I have in relation to both offences. Despite some weaknesses in the evidence, I consider it appropriate to accept the submissions of the parties. The armed robbery offence did in fact involve an act of violence. While I remain uncertain as to RRFM’s specific role, he was found guilty of the offence, and it carries a heavy maximum penalty. RRFM’s role in the offence of extortion with threat to kill is less equivocal and the offence also carries a substantial penalty. In short, the offending falls within the offending captured by the inclusive phrase ‘serious Australian offence’.
Accordingly, I find that the offending as a minor amounts to particularly serious crimes.
danger to the community
I am now required to consider the second issue, being whether RRFM is a danger to the community, an exercise that is accepted as involving consideration of present and foreseeable future conduct (WKCG at [31]). A range of factors were identified in WKCG as forming the basis of consideration, and this evaluation process was recently described as ‘multifactorial, and … it involves a complex assessment matrix’ (FSKY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCAFC 2 (FSKY) at [59]. I will turn to the legal framework for this consideration in more detail below.
Evidence
Applicant
RRFM provided a statutory declaration for the purposes of this matter, dated 15 August 2022 (A12), and a declaration in the course of his protection visa application (T2c). I summarise briefly from these statements:
(a)RRFM experienced persecution on the basis of ethnicity as a child in both Afghanistan and Pakistan, and trauma, including his brother’s death in a car accident in Pakistan;
(b)his father worked hard and purchased a home; the relationship with his father was tense; homelife was strict including physical punishment; and the family experienced difficulty adjusting to life in Australia, although the Applicant learnt English rapidly;
(c)RRFM was expelled from school in Year 10 because of behavioural problems and socialised with a group that encouraged his anti-social behaviour;
(d)after gaining experience in different jobs, RRFM started a construction business at 18 but developed a party lifestyle and a taste for luxury, at which time his mental health also deteriorated;
(e)RRFM began to use alcohol and drugs and developed a gambling addiction, then accumulated significant debts which caused problems with contractors and suppliers, leading to encounters with ‘standover men’;
(f)RRFM began spending time away from the family home including interstate and in hotels;
(g)his offending began at around this time, and RRFM came up with a scheme of obtaining money by not completing sales transactions;
(h)the Applicant is seriously remorseful for his actions, and is ashamed of the hardship he has caused his family who had tried to keep him from the dangerous lifestyle he was living;
(i)RRFM has tried to engage in positive initiatives both in prison and detention, and has had treatment for substance, alcohol and gambling addiction, and has also had some difficulty, having to defend himself from other detainees; and
(j)he wishes to work hard if given a second chance and has been offered work in his father’s business and that of a friend, and he would also like to engage in counselling, live with and reintegrate with his family, noting that his mother is ill.
In his evidence at the hearing, the Applicant stated that he had recently been diagnosed with ADHD which he considers may have contributed to poor decision making. RRFM now appreciates that he was in a ‘bad state of mind’ when younger. The Applicant stated that holiday work in his father’s business gave him the experience to start his own, but he gambled his income and his contractor’s pay. This lifestyle and threats received from people led to his fraud offending.
When asked if he would offend again, RRFM stated there was not even a ‘0.1%’ chance. He described his property damage offending as ‘stupid and reckless’, and that the person he was four years ago could not make mature decisions. RRFM stated he had tried a lot of courses in prison, but also explained that he had been moved around a lot, had been bashed and placed in protection.
RRFM stated that Covid-19 had made contact in detention with friends and family difficult. However, since moving to Christmas Island the Applicant has daily phone contact with his parents and a childhood friend, and weekly phone contact with his siblings and another Australian friend. When asked what else occupies his time in detention, RRFM stated that he lost hope following the failure of appeals in his visa cancellation decision, that he lost a large amount of weight, and has had medical issues. The Applicant also explained that an incident in detention arose when he was attacked for his smokes by other detainees. He denied having been violent in detention.
The Applicant stated that he had learned the value of freedom and of family. He realises from reading media about Afghanistan that being in Australia is a good thing, which he did not appreciate before. He reiterated that he does not feel physically or mentally well, and noted a recent diagnosis of coeliac disease, which would soon be evaluated on the mainland. RRFM stated that he takes medication for ADHD, depression and anxiety and also suffers from PTSD. He was hospitalised twice for medical conditions in the second half of 2022.
RRFM acknowledged his extensive history of alcohol and drug use in the past. When asked if he would drink if released, RRFM stated ‘no, no’ then added, ‘probably some wine’. When asked if he would gamble in the future, he stated ‘no’, adding ‘drinking and gambling, this stuff became a kind of nightmare for me’.
RRFM explained that two sisters live interstate, and his parents live with their three younger daughters. He considered his relationship with his parents was ‘always good’, and relations with his younger siblings was good. His father is still in construction, and his mother has an NDIS carer.
Concerning counselling activities, RRFM stated he had previously voluntarily engaged with Forensicare, and met a psychologist in relation to a court appearance, and is able to consult a psychologist in detention. He stated that he engaged with Foundation House previously, but this was not available on Christmas Island, and he would continue if released. RRFM understood that Mr Watson-Munro could assist in making contact with professional colleagues in Melbourne.
In cross-examination, RRFM was taken to aspects of his criminal offending. In response to a question about a family violence intervention order, the Applicant acknowledged his relationship with his father had not always been good. RRFM acknowledged the circumstances of a 2017 possession of weapon offence which arose from a road rage incident, for which the police report indicates he acted in a threatening manner with a knife. He also acknowledged an incident in which he broke a car window after a fight with a girlfriend and threatened a delivery man with a baton.
RRFM was also taken in some detail through his deception offences. He accepted the description in sentencing remarks (T4, 127) of offending interstate as planned and with the intention of gaining money to pay off his debts. When asked about similar offending in Victoria, RRFM stated he was a ‘self-declared’ bankrupt and still owes money to his workers. RRFM cavilled at sentencing remarks describing his offending as sophisticated crime. In response, he explained that when he felt financial pressure he knew how to ‘jump on Gumtree and cancel a payment’. When asked if he was remorseful, RRFM answered that he was getting pressure from people he owed money to. RRFM also cavilled at the description of leading a luxurious lifestyle.
The Applicant accepted that he had a history of breaching or not complying with court orders. He also accepted he had been rude to corrections staff, but challenged the use of the word ‘abusive’. When asked why he would respond positively now if given a chance, RRFM stated that he understands better what he needs to do now at the age of 25. RRFM was again challenged about his behaviour in prison, with reference to a large number of prison incidents listed in the earlier Tribunal decision (at [108]). He responded that he was not in a good state of mind due to mental health issues, and also that the prison environment ‘eventually impacts you’.
When asked specifically, RRFM stated he did not see himself as a violent person. He maintained this response after acknowledging that his criminal record included incidents of threatening behaviour. RRFM stated that he had made bad decisions outside, but had not physically harmed anyone. He stated that he had been affected by alcohol in past incidents and when asked why he had not addressed this earlier, replied: ‘If I knew it was a problem, I wouldn’t be here today’. When asked why he might drink again in the future, the Applicant stated that he now had control over himself, but ‘most likely’ he won’t drink. He acknowledged several incidents of cocaine use and more extensive cannabis use, and stated the latter was a problem similar in its effect to his alcohol use.
RRFM stated that he continues to have debts of ‘a bit over $300,000’. When I asked him to explain this sum, he stated that in addition to outstanding court orders of around $80,000, this was what he calculated that he owed his workers.
Other witnesses
RRFM’s father (F) provided a statutory declaration dated 14 August 2022 (A13). F states that the Applicant was clever, but ultimately denied a normal teenage life and that he and his wife were worried about the path he was taking when younger. F maintained regular contact with his son during his imprisonment and detention and considers he has observed a change in his attitude and increased maturity. F also confirms he will support RRFM if released and allow him into the family home.
F gave evidence at the hearing with the help of an interpreter. The evidence was interrupted due to an objection about the quality of interpretation and resumed the following day. He confirmed that he runs a successful small business as a tiler. F described the Applicant’s problems when young as not listening to teachers, being bullied at school, and acknowledged that the police were once involved in an incident at home. F stated that he was aware of RRFM’s criminal history, which he described as ‘trouble’, and observed that it started when the Applicant was living out of home. He also stated that he understood gambling to have been RRFM’s biggest problem. F accepted that the Applicant once threatened to kill him when drunk.
F stated that he would support RRFM with work, and with his medical and treatment needs. He was not sure about any debts owed by RRFM. F was confident that RRFM was able to turn his life around. F stated that he did not know what sort of condition his son has, but stated that he considered RRFM definitely needs treatment.
When asked further in cross-examination about RRFM’s offending, F stated it ‘maybe’ involved fighting, and taking money from people. He considered that the Applicant had a medical condition that led to his offending. When asked what he would do should RRFM indulge in alcohol or drugs, F stated he would be working and was completely regretful. He added that he had discussed with RRFM buying land and starting a business.
W1 provided a statutory declaration dated 15 August 2022 (A14) and also gave evidence at the hearing with the assistance of an interpreter. He stated that he has known RRFM for 15 years since high school, and also runs his own business. He is willing to provide secure employment to the Applicant. He stated that RRFM’s criminal history was ‘known about’.
W2 provided a statutory declaration dated 15 August 2022 (A16) and also gave evidence at the hearing. He too has known the Applicant since high school and runs a real estate agency. W2 described RRFM’s criminal history as ‘a few mistakes’ and ‘theft and stuff’. He stated that the Applicant has expressed regret for his actions, including particularly the impact on his mother. W2 also expressed his desire to guide the Applicant and provide advice for example in property development.
Expert evidence
Mr Watson-Munro provided a report dated 15 August 2022 (A11) which I summarise briefly as follows:
(a)RRFM describes a ‘complex clinical and developmental history’ characterised by early trauma and the impact of limited paternal contact;
(b)the Applicant acknowledges specific symptoms of depression, anxiety and trauma arising from these experiences and in the absence of treatment, and limited parental supervision;
(c)he drifted to an adverse peer group leading to drug use and criminal behaviour, and there is a nexus between offending, substance use, gambling addiction and associated financial pressures, coupled with unresolved psychological problems;
(d)having consulted with his father and a sister, notwithstanding the troubling history, there are now a number of protective factors in place which will reduce the risk of reoffending including family support, motivation for employment, and RRFM’s maturity;
(e)incidents in detention (T12) do not involve violence but essentially include food refusal and two minor disturbances;
(f)various education programs in custody (some eight different vocational programs being identified) are noted, and RRFM participated in eight appointments with Foundation House;
(g)a report of psychologist Ms Gina Cidoni dated 27 June 2019 prepared for sentencing purposes notes:
(i)a significant gambling habit and related debts;
(ii)testing revealed high scores for anti-social behaviour and schizoid personality traits and general maladjustment related to trauma, and testing also supported an earlier PTSD diagnosis;
(iii)thinking and judgment impaired by PTSD and gambling addiction;
(h)RRFM’s risk of reoffending, notwithstanding his offending history, ‘is now trending from Moderate to Low’.
In evidence, Mr Watson-Munro stated that his risk assessment was informed by the fact that RRFM has detoxed, matured, and reflected upon his position. The test will be when he returns to the community when there will be a period of adjustment. When asked if the various protective factors were weighted equally, he responded that they are solid both ‘singularly and collectively’. The absence of substance abuse however is particularly important. He also described the maturation as being both from passage of time and a change of behaviour. Mr Watson-Munro considered it speculative to identify how RRFM’s risk might ‘solidify’ at Low.
In cross-examination, Mr Watson-Munro stated that he believed mental health diagnoses undertaken by other experts were appropriate. He also considered RRFM had a post substance use disorder now in remission. Mr Watson-Munro considered that were the recent diagnosis of ADHD accurate, it was clinically significant in the Applicant’s general history with regard to his capacity to ‘negotiate life’. Asked whether he considered this condition to affect his assessment of protective factors, Mr Watson-Munro pointed to the fact that it is readily treated, and its relevance was primarily to RRFM’s history.
Mr Watson-Munro stated that he did not recall seeing the report of Ms Lisa Jackson. He stated that her assessment of Moderate risk of recidivism was consistent with his own, noting that consideration of dynamic risk factors can moderate static factors. He was then asked about this observation that RRFM did not exhibit violent behaviour in prison, and Mr Watson-Munro stated that some time had passed since a ‘concerning’ episode in prison. Asked to assume there had been one episode in detention, he stated that would be of concern.
With respect to RRFM’s potential for future alcohol use, Mr Watson-Munro agreed that risk of offending would increase should RRFM’s drinking return to a problematic level. Were RRFM his own patient, he stated that he would be more relaxed if the Applicant did not drink again; ‘a glass of wine here or there may be OK’. Mr Watson-Munro stated that alcohol was a form of self-medication for RRFM and treatment with cognitive behavioural therapy would be protective. He agreed that a debt level of $300,000 would be a significant issue giving rise to ongoing stress, and a need for other strong protective factors.
I sought from the Respondent a copy of the report of Ms Jackson dated 4 August 2020 (ST1) as this had been an exhibit referred to in the prior decision of the Tribunal. This report was prepared for the purposes of RRFM’s visa cancellation decision and I summarise it briefly as follows:
(a)RRFM’s history reveals some predisposing risk factors that gives some insight into his mental health deterioration in his teenage years;
(b)his offending was associated with alcohol and drug abuse, gambling addiction and mental health deterioration;
(c)testing indicated Moderate Risk/Needs of recidivism which could be reduced further with an appropriate treatment response; and
(d)protective factors in place that can assist in mitigation include good family support, stable housing and employment, compliance with medication and insight.
Other material
The contemporary medication chart lodged by the Applicant confirms he is receiving antidepressant medication for a sleep disorder, and an ADHD medicine for an adjustment disorder.

Documents lodged by the Applicant confirm: appointments for mental health assessments (A1, A3, A4, A6); a session of counselling by Gambler’s Help in 2019 (A2); engagement in several vocational courses in prison in 2019, with completion of five (A5); participation in eight sessions with Foundation House during 2021 (A8); attendance of a single AA session online in 2021 (A9); and, that RRFM’s mother is being treated for depression (A10).
Additional statements or declarations were lodged by the Applicant’s two sisters and a friend (A15, A17, A18). These are of a similar nature largely describing RRFM’s regret and asking that he be treated with compassion.
Submissions
The Applicant has made two primary submissions as to the issue of danger. With respect to his criminal record in totality, it is contended that it sits at the ‘low to moderate end of the scale’ (ASFIC [44]). While it is acknowledged RRFM committed a number of offences between 2015 and 2019, it is noted that there is no recorded conviction for an offence involving violence against a person (ASFIC [43]). It is also contended that he has not behaved with violence in detention.
The second core submission is that there are mitigating circumstances to his offending (ASFIC [45]-[47]). The Applicant points to: youth and immaturity at the time of offending; gambling addiction along with drug and alcohol use; difficulties at school; and, struggles with mental health. Further, it is contended there are factors minimising future risk including remorse, self-awareness, protective social supports, and health treatment.
Closing submissions expand upon these matters:
(a)the report of Mr Watson-Munro should be given significant weight, and the finding of a low to moderate risk of re-offending should be accepted [48];
(b)RRFM has a realistic and achievable plan for the future including for accommodation and employment, and he will engage with a psychologist and take medication [49];
(c)the expert evidence indicates that the factors underlying the Applicant’s offending behaviour have been addressed to the extent that he does not present a danger of relapsing [50];
(d)there is tangible evidence about counselling and rehabilitation undertaken [51];
(e)RRFM has developed a deep, genuine sense of remorse [52];
(f)the Applicant had undiagnosed ADHD, PTSD and other mental health issues which have been addressed, and also fell into debt [53]; and
(g)his criminal history spans a three-year period from mid-2015 to December 2018 when taken into custody, the longest sentence was a two-year aggregate and he has received, relatively speaking, lenient sentences in general, with no trend of increasing seriousness being evident [55].
The Respondent’s submissions centre upon two arguments, being the nature of the threat posed by RRFM, and its likelihood of eventuating. In respect of the threat posed by RFFM, it is contended that the Applicant would again commit offences of the kind for which he has been convicted (RSFIC [94]). It is noted that RRFM has been found guilty of offences which the Respondent contends involve violence (RSFIC [96]-[97]). The Respondent also contends that the property offending involving financial advantage by deception form a large body of premeditated crime, showing disregard for the law and for which he is yet to complete compensation orders (RSFIC [98]-[99]). It is also contended that RRFM has been involved in at least one physical dispute in detention (T11, 238), and engaged in arguments. Essentially, it is asserted that he has demonstrated a ‘willingness to use violence to solve problems’ (RSFIC [101]).
In respect of likelihood, it is submitted that there remains a ‘significant risk’ that he will again commit similar offences (RSFIC [102]). This is supported by reference to matters including his long record from a young age, his apparent lack of responsiveness to or engagement with the criminal justice system, and a purported lack of insight (RSFIC [103]-[105]). It is contended that in the community RRFM will face significant financial pressure of the kind that contributed to past offending (RSFIC [107]). The Respondent submits there is limited evidence of his engagement with treatment for alcohol and drug abuse, and failure to complete treatment in the past undermines his present commitment to do so (RSFIC [108]). In short, his resolve has not been tested (RSFIC [109]).
In closing submissions, the Respondent contends the proper characterisation of the expert evidence is that the risk of reoffending is ‘trending from moderate to low’, and therefore remains moderate until he is returned to the community and tested there (RC [53]). It is noted that Mr Watson-Munro agreed with Ms Jackson’s assessment of recidivism, and considered a diagnosis of ADHD clinically significant (RCS [54]-[55]). The Respondent contends his report did not take account of behaviour in detention, and may have understated the risk (RCS [57]).
The Respondent contends there is a real question about whether RRFM will remain alcohol and drug free, since he gave evidence that he might drink wine (RCS [60]). This is said to highlight poor decision making. The Respondent also questions the nature and extent of family support, given the Applicant’s father may not fully grasp RRFM’s mental health issues (RCS [61]). It is also contended that there is limited evidence of a supportive peer group (RCS [62]). In summary, it is argued that the underlying factors contributing to his offending have not been adequately met (RCS [63]-[66]).
Consideration
A range of factors underpinning consideration of this issue were first identified in WKCG and recently restated in FSKY as follows (at [41]):
(a)The question of whether a person constitutes a “danger to the Australian community” is one of fact and degree. Regard must be had to all of the circumstances of each individual case: WKCG at [25]’
(b)The person’s criminal record must be considered as a whole and their prospects of rehabilitation must be assessed: WKCG at [26];
(c)Relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence(s) imposed, and any mitigating and aggravating circumstances. The extent of the criminal history (both nature of prior crimes and the period over which they took place) is also relevant: WKCG at [26];
(d)The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration, which involves a consideration of the person’s previous general conduct and total criminal history: WKCG at [26] and [27];
(e)The assessment, which includes future conduct, 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: WKCG at [26];
(f)Once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community: WKC at [29];
(g)Whilst the nature and circumstances of the conviction(s) will be highly relevant to the question, it is not conclusive and it will be necessary to look at the person’s conduct in light of all the circumstances that have occurred up to the time of making the tribunal decision: WKCG at [29]; and
(h)It is not necessary to establish that there is a probability of a real and immediate danger of present harm – the provision seeks to protect the community from both immediate harm and harm in the reasonably foreseeable future: WKCG at [31].
The decision in FSKY is also of significance for its consideration of the relationship between recidivism and danger. This inquiry arose in part because of the earlier decision of KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 in which it was held that danger is ‘a term suggestive of a high level of risk’ (at [54]). This was relevant in FSKY due to a finding by the Tribunal that the Applicant in that matter presented with at least a low to moderate risk of re-offending (at [23]).
The Full Court considered that the high level of risk referred to in KDSP does not mean a high level of risk of recidivism (FSKY at [45]). In short, the court concluded that because the test of danger is multifactorial, the particular finding as to risk of recidivism in the matter ‘did not impede’ an ultimate finding as to danger (FSKY at [59]). Finally, the court held that: ‘[a]n intrinsically evaluative task, such as this one, is not susceptible to a great explication of the calibration of risk up and down according to each factor’ (at [65]).
I consider it necessary to observe that ‘danger’ somewhat stubbornly defies more precise definition. This arises from, for example, close attention to specific parts of WKCG, such as the statement: ‘[i]n assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community’ (at [31]). This might be read as offering three different qualifications of the likelihood of harm: a real risk; a significant risk; or, a possibility of harm. This framing of harm arose, in that matter, from a submission that danger required a ‘real probability’ of harm. Accordingly, read in this light, the emphasis is more properly upon the Tribunal’s rejection of the need for probability.
For this reason, I consider the passage of paragraph [31] of WKCG cited above as helpful; the provision is designed to protect the community from immediate harm, and harm in the reasonably foreseeable future. Thus, it is the risk of occurrence of harm that is the proper focus of consideration and, following FSKY, this is not a linear progression from any identified risk of recidivism.
Despite the relatively wide range of identified factors set out in the authorities, I consider that they can be conveniently grouped under broader headings: seriousness and nature of crimes; and, risk of reoffending.
Seriousness and nature of crimes
A key feature of this matter is the somewhat broad and undefined nature of the concept of danger. The evidence led and the submissions of the parties highlight this issue through the ways in which certain of RRFM’s offences and other conduct were dealt with. In short, a question appears to arise about the degree to which some form of physical harm or other serious act involving fear or intimidation is needed in order to meet the statutory test.
RRFM has a record in excess of 50 separate convictions between June 2015 and February 2020. Approximately ten of these involve threatening behaviour (some serious), property damage, assault, robbery and weapons offences. It appears that the Applicant has in fact not been charged with nor have specific allegations been made in the wider material of any instance of actual physical assault on another person. I accept, however, that RRFM has engaged in acts of property damage and made threats of violence on more than one occasion, and has done so once when armed with a knife.
I accept that some forms of driving offence may potentially contribute to a finding of danger. For completeness, I note here that it has not been argued before me that some, or all, of RRFM’s driving offences amount to acts that contribute to a risk of danger. In the absence of further evidence relating to this offending, I am unable to place any particular weight on it in that specific respect. I do consider it reasonable to consider that repeated offending, including driving whilst suspended, speak to a disregard for the law, which may influence a finding on risk.
Some emphasis was placed by the Respondent on the implications of RRFM’s very extensive record of financial crime related to scam property transactions. Much of this I consider went to the issue of risk. However, I understand the Respondent also to have been seeking to highlight the sheer scale of RRFM’s offending record. This includes, I note, charges such as fail to answer bail, and breach of orders, including his initial youth supervision order.
I consider that RRFM’s record of offending overall to be quite serious given its size and scope. It commenced at a young age, and was sustained and persistent. Despite RRFM’s reluctance to accept this proposition in evidence, his repeated deception of buyers in private sales transactions was found to have been planned. Furthermore, his offending persisted despite different sentencing options including periods of incarceration.
Equally, it is of significance that only a relatively small portion of RRFM’s offending involved some kind of threatening behaviour, and none appears to have involved physical assault. I do not consider the instances of property damage to be of substantial concern, for the reasons given above, which led me to find that they do not constitute particularly serious crime.
I also consider that the expert medical evidence to be consistently of the view that RRFM’s offending was bound up with a relatively complex presentation involving multiple mental health conditions against a background of personal trauma and moderate family dysfunction. The evidence is to the effect that the Applicant was unaware of these conditions at the time of this offending, and that they were untreated. These factors appear to be almost entirely absent from the two transcripts of sentencing that are in the materials.
In summary, I consider reasonable weight needs to be given to the specific, but limited, history of threatening behaviour. Equally, some weight needs to be given to the disregard for the law indicated by the volume of offending. Both factors, however, need to be tempered by the context of RRFM’s offending. That is, broadly speaking, his more serious offending was attended by alcohol and mental health issues. His financial crimes were attended, at least, by a gambling addiction. These issues are of importance also for the following consideration.
Risk of reoffending
It is necessary to return to the issue of RRFM’s behaviour in prison and detention. As noted earlier in these reasons, I determined that the bulk of the incident reports lodged in this matter would not form part of the material received in evidence. There was some quite limited attention otherwise paid to the Applicant’s conduct in detention during the hearing. While I accept that he may have been involved in some form of incident in detention, I do not have before me recent evidence of poor behaviour on which I can place great weight, and it follows, very limited evidence of behaviour the speaks directly to harm (as it informs the concept of danger).
I noted above that it was put to the Applicant that he had been involved in numerous incidents in prison. I have considered this material and accept that there is some evidence of poor behaviour during RRFM’s incarceration, but the majority of this conduct relates to matters of attitude rather than unsafe or harmful conduct. Accordingly, I give this some, but limited, weight.
The Applicant gave evidence more than once to the effect that he was not a violent person, and I noted instances in which he appeared to quibble with questions put in cross-examination. Considering the evidence as a whole, I consider that RRFM tried to take opportunities to play down the frequency or significance of instances of threatening behaviour or confrontations, whether in his offending history or while incarcerated or detained. This approach is somewhat in contrast to his other written and oral evidence expressing remorse for his past conduct, and slightly erodes the level of confidence I might otherwise have about the insight he is said to have developed.
There is more than one formal risk assessment indicating that RRFM presents a baseline level of recidivism at or near Moderate. I accept Mr Watson-Munro’s evidence, however, that this level is trending to low, due to the fact that RRFM’s substance abuse condition is in remission. Mr Watson-Munro identified a range of protective factors that he considered would assist in reducing the risk of reoffending to the lower level, and I note that it is commonly accepted in this field of expertise that there is no capacity for a clinical assessment of ‘no’ risk of reoffending.
There is a range of oral and written evidence as to the future supports that RRFM is likely to receive in the community. I consider that some of this material is not particularly robust. None of the witnesses or other supporters of the Applicant demonstrated a strong grasp of his offending history. However, I am not sure that this is central to whether or not he would receive assistance. I accept the evidence of his father that RRFM will be offered accommodation and support by the family. The evidence as to the exact nature of his lifestyle during the period of the Applicant’s offending was not detailed in evidence at the hearing, but I do have some evidence that in addition to not having strong family relations at this time, RRFM also spent time physically distanced from the family home. I accept therefore that there is certainly an opportunity to build a better quality relationship that may reinforce the protective nature of such support. I also accept that the Applicant has more than one robust and feasible offer of sustainable employment. None of this evidence was substantively challenged.
The Respondent has sought to critique RRFM’s past engagement with support services and treatment, and thus his commitment to future help with his complex mental health needs. I consider there is good evidence of a decent level of engagement, particularly with Foundation House, which I also consider to be a highly relevant form of support. There is less evidence of meaningful engagement in relation to substance abuse issues and gambling.
On balance, I consider that RRFM’s engagement to date has been proportionate to the opportunities he has had in prison and immigration detention. Perhaps more significantly, I accept the evidence that points to RRFM having gained insight into his treatment needs, and that he has a grasp of how to proceed with gaining assistance in the future.
It remains somewhat unclear from the expert evidence what kind of offending it is that RRFM might be at risk of committing in the future. I consider it reasonable to proceed on the basis that the assessments of risk apply generally to his range of prior offending.
As I have noted above, all of the Applicant’s offending needs to be understood in the context of his then undiagnosed conditions. In terms of the risk of reoffending in the future, the picture is slightly more complex. I understand the Respondent to contend essentially that there is some chance that RRFM may relapse into substance misuse, and a reasonable chance that he will face financial problems from ongoing debts, and therefore that circumstances similar to those behind prior offending will recur. I have not been provided by either party with a definitive assessment of existing debts arising either from compensation or from money owed elsewhere. However, I think it reasonable to accept that RRFM potentially faces a not insubstantial financial burden if released, some of which might arise from his own motivation to repay funds to individuals he has disadvantaged.
I am satisfied from the evidence overall that the relevant protective factors will be in place and will prevent such a worse-case scenario eventuating. Despite the slight misgivings I identified above in respect of aspects of RRFM’s evidence, I consider that his consistent evidence about remorse and insight into his predicament is believable, and forms part of what Mr Watson-Munro considered was a combination of maturity and behaviour change. I accept the expert’s more nuanced approach to RRFM’s possible future use of alcohol, and do not consider the Applicant is particularly vulnerable to relapse. I also consider the immediate support arising from family and employment will ameliorate the likelihood of stressors arising in the future. I also accept it as likely that RRFM will in fact continue to engage in relevant therapeutic treatment.
conclusion

To summarise from my preceding considerations and findings, ultimately, I am not persuaded that what risk remains of reoffending amounts to a risk of immediate harm, nor to harm in the reasonably foreseeable future. Specifically, while there is here an identifiable risk of reoffending, this risk is not a high risk; it is acceptable in the Applicant’s personal context. Furthermore, I do not consider the consequences in terms of seriousness of level of harm, to rise to the level intended by the provision.
decision
For the reasons given above the Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration, with a direction that the Applicant is not a danger to the Australian community.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the written reasons for the decision herein of Senior Member Fenwick

........................[sgd]................................................
Associate
Dated: 22 February 2023

Date of hearing: 7 and 8 December 2022

Counsel for the Applicant: Melinda Jackson

Solicitors for the Applicant:

Counsel for the Respondent:

Bardo Lawyers

Kylie McInnes

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	7 and 8 December 2022
Counsel for the Applicant:	Melinda Jackson
Solicitors for the Applicant: Counsel for the Respondent:	Bardo Lawyers Kylie McInnes
Solicitors for the Respondent:	Sparke Helmore Lawyers