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

[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 served concurrently for escaping police custody. He had two subsequent convictions for assault, neither involving any actual bodily harm.

6. 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.

7. 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.

8. 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

9. 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.

10. 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.

11. 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).

12. Rehabilitation is never certain and the duty of the Tribunal is to “apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable risk”: Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148.

13. Consistent with the principle that the Tribunal is to determine issues upon the evidence before it at the time it makes its decision, the Tribunal has had regard to the recent decisions of DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18) and MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259 (MHCZ). In DOB18, Logan J held that “‘danger’ in s. 36(1C) of the Act means present and serious risk… [I]t carries a narrower and more restrictive meaning than just ‘risk’”: at [83]; and “neither remote nor fanciful”: MHCZ at [35].

14. The evidence before the Tribunal to be considered includes all the circumstances that have occurred up to the date on which the Tribunal makes its decision, both before and after the period of the convictions which constitute the particularly serious crime: WKCG at [29] and MHCZ at [20].

15. Matters considered to be relevant to article 33(2) of the Refugees Convention, by the Tribunal as identified in WKCG at [26] are:

    (a)the seriousness and nature of the crimes committed;

    (b)the length of any sentences that were imposed;

    (c)any mitigating or aggravating circumstances (around the circumstances of the offending);

    (d)the extent of the Applicant’s criminal history and the nature of his/her prior offending;

    (e)the length of the criminal history; and

    (f)an assessment of the Applicant’s risk of reoffending and recidivism and the likelihood of relapsing into criminal activity.

16. Such matters are by way of guidance and are not exhaustive, as all the circumstances in each particular matter are to be considered.

17. On 5 September 2017, Direction 75 was issued under s. 499 of the Act. It sets out the following principles:

    (a)Australia has a right to determine whether non-citizens who present serious character or security concerns should be granted a visa, including a Protection Visa.

    (b)The Australian community expects the Australian government can and should refuse to grant a non-citizen a visa, if they pose a danger to the Australian community having been convicted of a particularly serious crime in Australia or elsewhere.

    (c)It is unacceptable to grant a Protection Visa to a non-citizen who is considered to present serious character or security risks to the Australian community.

    (d)Refusal of a Protection Visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection Visa to a person who is a danger to Australia’s security or to the community, this does not necessarily mean that a person should be removed from Australia.

    THE APPLICANT’S CASE

18. The Applicant submits that the Tribunal is to determine whether he is a present danger to the community against the backdrop of the factual circumstances which exist at the date of this decision. This approach essentially accords with the legal principles outlined above, which were those submitted by the Respondent as applicable.

19. Present danger being the test, the Applicant contends he is not a danger either now or in the reasonably foreseeable future. He submits that he has rehabilitated and has been of exemplary behaviour after 2015. The Applicant submits his rehabilitation is the result of:

    (a)his maturation;

    (b)his ongoing detention, the resulting rumination and opportunity to effect behavioural change and plan for the future;

    (c)his migration situation, including his fear about removal from Australia; and

    (d)the long term effect of separation from his family and increased closeness and support.

20. The Applicant has not committed an offence since October 2015, over five years ago, and his more serious offences were committed over eight years ago. The only incident in his detention file, which occurred after 2015, is not relevant in assessing ‘danger’.

21. The Applicant has not used alcohol or cannabis for four years, and has never used illicit drugs other than cannabis. He has resolved not to use alcohol or cannabis in the future.

22. Consistent with these submissions, the Applicant directs the Tribunal to the evidence of Dr Nina Zimmerman, forensic psychiatrist and independent expert, who had examined the Applicant, and stated:

    One of the most robust findings from the area of risk management is the reduction in recidivism that occurs with ageing, independent of interventions that may have occurred.[1]

    [1] Applicant’s Statement of Facts, Issues and Contentions, lodged 23 January 2020, 9 [51].

23. In her assessment, significant life events “such as a prolonged period in indefinite detention facing forced return to South Sudan” have clear psychological impacts on desistance, being long term cessation of offending accompanied by a change in             self-identity. Dr Zimmerman notes that, over a prolonged period of reflection without using alcohol, the Applicant “has adopted a persona in detention where he has become a positive role model for other detainees”.[2] For example, and consistent with this observation, on 22 December 2016 the Applicant was awarded a Certificate of Appreciation by the Australian Border Force: documents provided pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-docs), 194. Dr Zimmerman’s formal assessment of the Applicant is that he is a low risk of reoffending.[3]

    [2] Ibid [52].

    [3] Ibid 10 [55].

24. In respect of the Applicant’s most serious offending in 2011, during which no actual injuries were inflicted or any person deprived of their liberty, the Applicant directs the Tribunal to Judge Quirk’s sentencing remarks of 18 June 2012, which are apposite.          The sentencing remarks noted that the Applicant’s criminal history was not lengthy, he had drunk to excess at the time of his offending and may have had difficulty controlling his behaviour and there was no evidence that the victim suffered any particular ongoing harm. Judge Quirk observed that the Applicant had “reasonably good prospects of rehabilitation” based on his remorse and his efforts to learn and stay out of trouble. Regarding his violent offending which occurred on 9 February 2014, the Applicant was sentenced to             three months, concurrent for two counts of common assault out of a maximum available penalty of two years.

25. During his first year in immigration detention in 2015 he had some involvement in a riot leading to a conviction, but not for the more serious charge of ‘rioters causing damage’. The Applicant received an eight month sentence out of a possible five year term, indicating his offending was not of the more serious type in relation to that offence.

26. In sentencing regarding the riot, Magistrate Young accepted that the detainees involved had earlier been transferred to a more restrictive unit on account of works being carried out at the detention centre, that they were held there “longer than the usual time detainees were required to spend there” and that detention was very stressful: T3(c)(iv), T-docs, 113, 116. It was noted that the Applicant did not play a leading role, and got swept up in the events and that his individual actions were not designed or likely to endanger the safety of staff.

27. The Magistrate further noted through the Applicant’s references that he had been of good character and behaviour, serving as a role model for other detainees. The Magistrate accepted that the Applicant was determined to conduct himself differently if given the opportunity and had demonstrated remorse and a preparedness to facilitate the course of justice.

28. The Applicant has always taken full responsibility for his offending and makes no attempt to minimise his wrongdoing. In summary, the Applicant submits he:

    (a)is rehabilitated;

    (b)does have realistic plans;

    (c)does have extensive support; and

    (d)is motivated to not be a ‘danger’.

    THE RESPONDENT’S CASE

29. The Respondent submits that the Applicant remains a danger to the Australian community due to his significant criminal history dating back to 2011. The aggravated robbery offence involved unprovoked violence and although not resulting in any actual injuries it did involve “taking hold of the victim’s throat, punching him in the jaw, and throwing a beer bottle at the victim, hitting him in the head”.[4]

    [4] Respondent’s Statement of Facts, Issues and Contentions, lodged 12 February 2020, 5 [28].

30. As mentioned above, the sentencing judge, Judge Quirk said in June 2012 that the Applicant had “reasonably good prospects of rehabilitation, providing he can stay out of trouble and avoid mixing with adverse influences whilst in custody” but did find the offending “abhorrent behaviour”, and was concerned that the Applicant “has such a history of violence” and that “his behaviour has been escalating”: T3(c)(ii), T-docs, 105–6. Further, it was a “significant aggravating factor” that the Applicant was on probation at the time of offending: T3(c)(ii), T-docs, 105.

31. The Respondent submits that Applicant’s criminal history must be viewed in light of the lengthy periods he has served in custody away from the community. Since his first conviction on 28 March 2011, all of the Applicant’s criminal offending in the community up to 2014 has occurred within a combined period of less than 10 months.

32. As referred to above, the Applicant was involved in a riot during his first year in immigration detention in 2015. The sentencing magistrate noted the Applicant did not play “a leading role in the incident” and “did not instigate the incident”.

33. The Applicant also received punishment while in criminal custody for several breaches of the Crimes (Administration of Sentences) Regulation 2008 (NSW) between 14 February 2013 and 12 August 2014. Also, the Applicant has been involved in six incidents while in immigration detention categorised as ‘major’ in the Applicant’s detention file, again limited to his first year in detention, 2015. Twenty-nine minor incidents were also noted on his detention file.

34. Regarding risk of reoffending, the Respondent submits that the Applicant’s criminal offending bears close relation to alcohol and drug abuse and that his offending continued notwithstanding the imposition of court orders and other consequences directed at encouraging good behaviour. As Dr Zimmerman noted:

    There is a clear link between his alcohol use and his offending, including his violent offending. This is the major factor that needs to be addressed in order to minimise future offending. It is positive that he has had several years in an alcohol free environment.

    Reflecting on the historical factors, I believe that substance misuse and his antisocial/violent offending are most relevant to [the Applicant’s] future risk and, while historical factors by nature cannot be changed, the issue of substance abuse and avoiding antisocial peers/environments must be at the heart of future interventions with [the Applicant]. [5]

    [5] Ibid 8 [46].

35. The Respondent accepts, in his submissions, that the Applicant has experienced trauma in his childhood, including, significantly, the death of his father, and the separation and displacement of his family. The Applicant has also expressed remorse for his offending and, by way of early pleas of guilty, accepted responsibility. The Respondent accepts that that is to the Applicant’s credit. The Respondent acknowledges that the Applicant expressed remorse and contrition in a letter to the New South Wales District Court on sentencing and to the Magistrates’ Court of Western Australia and notes that the Applicant continues to express his remorse for his offending. However, the Respondent challenges the weight which such remorse should be given in light of the history of the Applicant’s criminal offending.

36. In summary, the Respondent emphasises the violence and serious nature of the prior offending, the duration of time the Applicant has been in the community being limited — he has not been in the community since 9 February 2014 — and that he continues to offend despite deliberate impositions of penalties put in place to deter offending.            His offending continued in spite of the visa cancellation and being on parole.

37. 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

38. 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.

39. 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.

40. 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.

1. 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.

2. 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.

3. However, having considered the documentary evidence tendered, including various letters and statutory declarations together with the oral evidence of the numerous lay witnesses, the independent expert evidence of Dr Zimmerman and the Applicant himself, the Tribunal is satisfied that the Applicant has now changed his ways, and realised the importance of his family, his son and the need to make a genuine, sustained and positive contribution to Australia. On the evidence, the Applicant’s conduct since 2015 has been impressive and sustained, and the Tribunal found his oral evidence in this regard compelling.

4. While the Tribunal appreciates the Applicant has been in immigration detention since 2015, this has not prevented the Applicant from rehabilitating.  The Applicant has turned his life around while in detention and has been of relative good behaviour since 2015 — apart from his minor role in a riot in his early months in detention when moved to a different unit as outlined above and while, understandably, adjusting to life in detention which, as it would seem to him, had no apparent end date.  His behaviour was of such a good level that on 22 December 2016 he received a certificate of appreciation for good behaviour from the Australian Border Force, underscoring the progress of his maturation and rehabilitation while in detention.

5. During his many years in immigration detention the Applicant has consistently stayed off alcohol and drugs, even though they are apparently available, and has been of good behaviour in particularly challenging circumstances. The Applicant has achieved this in spite of being held in detention with an uncertain future.  Understandably, as Dr Zimmerman testified, this detention with little hope is the foundation of a major depressive disorder which the Applicant now suffers from, at least temporarily. 

6. The Tribunal accepts the Applicant’s evidence that he has realised during his five years in detention that he needs to avoid alcohol and drugs, not mix with anti-social individuals, and that he now appreciates his family and the privileges that living in Australia offers. Consistent with that evidence is the evidence of his conduct in detention, together with the evidence of Dr Zimmerman.  Also consistent with his good prospects upon release is the evidence of his family and other support he will receive if he is released into the community.  The Applicant is very fortunate to have, in addition to his caring family and Sudanese community members, a generous and impressive mentor in Ms Meyer.         The Tribunal accepts her evidence that if all else fails she will ensure that the Applicant will receive any private counselling, if such be required, to assist with maintaining him in his rehabilitated state.

7. 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

8. 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.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision of Mr A Maryniak QC, Member

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

Associate

Dated: 26 March 2020

Dates of hearing:	20–21 February 2020
Counsel for the Applicant:	Mr M Guo
Solicitors for the Applicant:	Ms H Dickinson of Victoria Legal Aid
Counsel for the Respondent:	Mr J Barrington
Solicitors for the Respondent:	Ms M Jackson of Australian Government Solicitor