RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case [2020] AATA 665

RVJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 665 (21 February 2020)

Division:GENERAL DIVISION

File Number:          2018/7729

Re:RVJB

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr A Maryniak QC, Member

Date:21 February 2020

Date of written reasons:        26 March 2020

Place:Melbourne

The Tribunal sets aside and remits the decision under review to the Respondent for reconsideration of the Protection (class XA, subclass 866) visa with the direction that the Applicant satisfies s. 36(1C) of the Migration Act 1958 (Cth).

....[sgd]....................................................................

Mr A Maryniak QC, Member

Catchwords

MIGRATION – Protection (Class XA) (subclass 855) Visa refusal – Sudanese national –section 36(1C) of Migration Act 1958 (Cth) – Applicant has been convicted by a final judgment of a particularly serious crime – Ministerial Direction no. 75 – whether a danger to the Australian community – time span and seriousness of the offending – decision under review set aside and remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Crimes (Administration of Sentences) Regulation 2008 (NSW)
Migration Act 1958 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases

BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
DOB18 v Minister for Home Affairs [2019] FCAFC 63
MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434

Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148

REASONS FOR DECISION

Mr A Maryniak QC, Member

26 March 2020

  1. This is an application for review of a decision of a delegate of the Respondent to refuse the Applicant a Protection (class XA, subclass 866) visa (Protection Visa) under s. 36(1C) of the Migration Act 1958 (Cth) (the Act).

  2. The Applicant concedes that he has been convicted by a final judgment of a particularly serious crime. Hence the sole issue for determination is whether the Tribunal considers, on reasonable grounds, that the Applicant is a danger to the Australian community.

    BACKGROUND

  3. The Applicant is a 27-year-old male who arrived in Australia aged 13 in September 2006, holding a Refugee and Humanitarian (Class XB) subclass 200 (Refugee) visa (Refugee Visa).  He is of Dinka (Agaar) ethnicity and was born in Sudan.

  4. The Applicant received 10 criminal convictions for various offences over four occasions in 2011, none for which custodial sentences were imposed. The Applicant received              11 convictions over four occasions between February 2012 and May 2014, save for a latter offence in immigration detention. Relevantly only three of these offences involved some degree of violence against an individual.

  5. On 18 June 2012 the Applicant was convicted for the most serious of those offences, being aggravated robbery, for which a custodial sentence of three years was imposed, with a non-parole period of 18 months. An additional one year imprisonment was…

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Details
AGLC
RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665
Case
[2020] AATA 665
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Protection Visa by RVJB, a Sudanese national, against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse the visa. The central dispute revolved around whether RVJB, having been convicted of a particularly serious crime, posed a danger to the Australian community, as contemplated by section 36(1C) of the *Migration Act 1958* (Cth). The case was heard by Mr A Maryniak QC, a Member of the Tribunal.

The legal issue before the Tribunal was to determine, on reasonable grounds, whether RVJB constituted a danger to the Australian community, given his prior criminal convictions, including aggravated robbery. This assessment was to be made in accordance with section 36(1C) of the *Migration Act*, which requires that an applicant for a protection visa not be a person whom the Minister considers, on reasonable grounds, to be a danger to the Australian community after being convicted of a particularly serious crime. The Tribunal was required to apply the principles established in relevant case law, which clarified that the assessment of danger did not necessitate balancing it against potential harm to the applicant if returned to their country of origin, nor did it require proof of a probability of harm.

The Tribunal reasoned that while RVJB had indeed been convicted of a particularly serious crime, and his past offending, particularly around 2011-2014, involved violence and was influenced by alcohol and drugs, his circumstances had changed significantly since mid-2015. The Tribunal accepted that RVJB had matured, gained a greater appreciation for family and life in Australia, and had demonstrated an ability to avoid anti-social influences even while in immigration detention. This conclusion was supported by evidence of a supportive network of family and associates, a measured plan for his future, and positive maturation highlighted by expert evidence.

Consequently, the Tribunal was satisfied that RVJB was not a danger to the Australian community. The decision under review was set aside and remitted to the Respondent for reconsideration, with the direction that RVJB satisfied the criterion under section 36(1C) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant concedes that he has been convicted by a final judgment of a particularly serious crime. Hence the sole issue for determination is whether the Tribunal considers, on reasonable grounds, that the Applicant is a danger to the Australian community.BACKGROUND The Applicant is a 27-year-old male who arrived in Australia aged 13 in September 2006, holding a Refugee and Humanitarian (Class XB) subclass 200 (Refugee) visa (Refugee Visa). He is of Dinka (Agaar) ethnicity and was born in Sudan. The Applicant received 10 criminal convictions for various offences over four occasions in 2011, none for which custodial sentences were imposed. The Applicant received 11 convictions over four occasions between February 2012 and May 2014, save for a latter offence in immigration detention. Relevantly only three of these offences involved some degree of violence against an individual. On 18 June 2012 the Applicant was convicted for the most serious of those offences, being aggravated robbery, for which a custodial sentence of three years was imposed, with a non-parole period of 18 months. An additional one year imprisonment was served concurrently for escaping police custody. He had two subsequent convictions for assault, neither involving any actual bodily harm. On 8 July 2013, the Applicant received a warning regarding visa cancellation and on 19 December 2014, the Applicant’s Refugee Visa was mandatorily cancelled under s. 501(3A) of the Act. From January 2015, over five years ago, the Applicant has been held in immigration detention under s. 189(1) of the Act, save for a period of eight months’ imprisonment for his part in a riot, which took place during his first year in immigration detention. On 14 March 2018, the Applicant lodged an application for a Protection Visa and on 19 December 2018 a delegate of the Respondent refused that application, in spite of finding that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to South Sudan, there was a real risk that the Applicant would suffer significant harm.RELEVANT LAW AND POLICY Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Amending Act), intending to codify article 33(2) of the Convention Relating to the Status of Refugees (Refugees Convention): see Sch 5, Pt 2, Item 9 of the Amending Act and the relevant explanatory memorandum. Relevantly, s. 36(1C) of the Act provides:A criterion for a protection Visa is that the Applicant is not a person whom the Minister considers, on reasonable grounds:…(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. If the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision: s. 65 of the Act, BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [48] to [49]; MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 at [29] to [32]. It is not necessary to balance any danger against the possible harm to an Applicant if returned to their receiving country: SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 at [27]. Further, it is not necessary that a ‘probability’ of harm be established: WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 at [31] (WKCG).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Further, since mid-2015 the Applicant has displayed, through his behaviour, his ability to avoid individuals with an anti-social influence, even in detention. The Tribunal is satisfied that the Applicant is now empowered with a more mature skill set to deal with the very real challenges that he will be faced with. This is in light of the supportive network of family and associates that awaits the Applicant, the measured yet realistic plan he has for his own future and, as part of that, the positive benefit of his maturation, as specifically highlighted by Dr Zimmerman. In all the circumstances of this matter, the Tribunal is satisfied that the Applicant is not a danger to the Australian community.DECISION On balance, the Tribunal is satisfied that the correct and preferable decision is to set aside and remit the decision under review to the Respondent for reconsideration of the Protection (class XA, subclass 866) visa with the direction that the Applicant satisfies s. 36(1C) of the Act.

Ratio Decidendi

Legal Principle Established

The Respondent also underscores the connection between the Applicant’s past offending and the motivating factor of alcohol and drugs. While the Applicant has remained sober for the last four years, the Respondent points to the absence of participation in any drug and alcohol program. The Respondent submits that the Tribunal should view the Applicant’s consistent remorse with caution.CONSIDERATION The Tribunal considered the oral evidence of the Applicant, two of the Applicant’s brothers, Ms Susan Ruth Meyer (volunteer mentor), Dr Zimmerman and Mr Ring Mayar (community leader), who were all cross-examined. The Tribunal also considered the evidence tendered, being exhibits A1 to A11 and R1 to R3, together with the oral and written submissions of the parties. The core submission of the Applicant is that the ‘penny has dropped’. Since 2015 and while in detention, he has realised, through the passing of time and maturity, the need to change his life and avoid anti-social influences; and he has gained a real appreciation for family and life in Australia. His previous troubled existence is now behind him. The Applicant and his family, particularly his mother, had an exceptionally difficult life leading up to their arrival in Australia, including the disturbing circumstances surrounding the death of the Applicant’s father. When the family were accepted into Australia as refugees on humanitarian grounds, the Applicant, being the eldest son (still in his teens), had substantial difficulties assimilating into the Australian way of life. As can happen to some young men growing up, the Applicant, who had moved to a new country with a different language and very different culture, lost his way and drifted towards the influence of anti-social individuals. His mother was unfortunately absent from Australia during part of this critical period, dealing with another family problem overseas. As agreed between the parties, the sole question before the Tribunal is whether under s. 36(1C) of the Act, the Applicant is a danger to the Australian community presently or in the foreseeable future, according to the relevant principles outlined and discussed above. In applying those principles to the evidence before the Tribunal, on balance the Tribunal is satisfied that the Applicant is not such a danger to the Australian community. In reaching this conclusion the Tribunal is conscious of the submissions of the Respondent, including that the previous offending by the Applicant, up to about mid-2015 and in particular around the aggravated robbery a few years earlier, which was of a violent and serious nature. This is reflected in the fact that the Applicant satisfied the first limb of s. 36(1C) of the Act, namely, that he had been convicted by a final judgment of a particularly serious crime. The Tribunal also notes that, during this earlier period, his remorse and the various deterrents against further anti-social behaviour were somewhat diluted by his continuing anti-social behaviour. The Tribunal also appreciates that the Applicant has had a limited number of months out in the community over the last decade or so and that he did reoffend while on parole.