RWDX and Minister for Immigration and Border Protection (Migration)
[2019] AATA 123
•12 February 2019
RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123 (12 February 2019)
Division:GENERAL DIVISION
File Number: 2017/7739
Re:RWDX
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:12 February 2019
Place:Perth
The decision of the delegate of the Respondent to refuse the Applicant a Protection (class XA, subclass 866) visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.
...........[sgd].............................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – nature and seriousness of the crimes committed – length of sentences imposed – mitigating or aggravating factors – criminal history in totality – nature of the prior crimes – period over which the crimes took place – risk of re-offending/likelihood of relapsing into crime – prospects of rehabilitation – applicability of Direction no. 75 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 5, 5M, 36(1C), 36(1C)(b), 36(2)(a), 36(2)(aa), 47, 65, 65(1)(b), 499, 500(1)(c), 500(1)(c)(i), 501, 501(2), 501E(2)(a)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) – Sch 5, Pt 2, item 9
CASES
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148
WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434SECONDARY MATERIALS
1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol – Art 33(2)
Minister for Immigration and Border Protection, Direction No. 75 – Migration Act: Direction under section 499: Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (Department of Immigration and Border Protection, 6 September 2017) – Part 2 – paras 1, 2
Department of Home Affairs, Refugee Law Guidelines (Department of Home Affairs,
1 July 2017) – Ch 14REASONS FOR DECISION
Deputy President Boyle
12 February 2019
THE APPLICATION
This is an application for the review of a decision of a delegate of the Respondent to refuse the Applicant a Protection (class XA, subclass 866) visa (the Protection visa) under s 65(1)(b) of the Migration Act 1958 (Cth) (the Act).
The Protection visa was refused because the Respondent was not satisfied that the Applicant met the criterion in s 36(1C) of the Act for a protection visa. In particular the Respondent was satisfied, on reasonable grounds, that the Applicant having been convicted of a “particularly serious crime, is a danger to the Australian community” and as a consequence did not satisfy the criterion in s 36(1C)(b) of the Act.
BACKGROUND
The Applicant was born in Khartoum, now in the Republic of Sudan, in 1990. He arrived in Australia on 22 October 2003 on a Refugee and Humanitarian (Class XB), subclass 200, visa.
The Applicant has an extensive criminal record. The Applicant has been dealt with by the courts, starting 2005, around 30 (on the Tribunal’s count) offences across three states. The Applicant’s criminal history as disclosed by South Australian Department of Correctional Services records from November 2014 (R3, T4 at 50-59), a National Police Certificate dated 13 August 2013 (R3, T4 at 64-65), a National Police Certificate dated 13 January 2015 (R4, ST1 at 9-10 and again at 67-68), a Queensland Police Service Traffic Record (R4, ST5 at 390) and a Perth Magistrates Court record of conviction dated 29 November 2017 (R4, ST5 at 512) is as follows:
Court Court Date Offence Date Offence Court Result Perth Magistrates Court 29 November 2017 06 Oct 2015 Took part in a riot 8 Months CC Holden Hill Magistrates Court 08 Dec 2014 20 Sept 2014
5.
Unauthorised Person Drive Motor Vehicle on Road Convicted. Bond $200 to be of good behaviour for 12 months. Give False or Misleading Personal Detail to Officer District Court of SA 09 Mar 2012 01 April 2010 Intentionally Cause Harm Imprisonment 2 years 50 weeks Adelaide Magistrates Court 06 Dec 2011 24 Feb 2011 Disorderly Behaviour Fined $200. Holden Hill Magistrates Court 21 Nov 2011 25 Oct 2011 Loitering Fined $200. Resist Police Adelaide Magistrates Court 23 Nov 2010 05 July 2010 Fail to comply with Bail Granted agreement (2) Convicted good behaviour bond $500 6 months Fail to comply with Bail Granted agreement Convicted. No penalty imposed. Adelaide Magistrates Court 18 May 2010 03 Jun 2009 Loitering Convicted. Bond $100 to be of good behaviour for 12 months. Resist Police 13 and 29 Jan 2010 Disorderly Behaviour
(2 charges)Adelaide Magistrates Court 03 Dec 2009 03 Dec 2009 Estreatment of Bail Granted Estreatment $500 Holden Hill Magistrates Court 10 Mar 2009 06 Nov 2008 Throw Missile to Cause Injury or Damage to Property Convicted. No penalty imposed. Adelaide Magistrates Court 01 Dec 2008 18 Jul 2008 Refuse Name and Address Fined $130. Not stated 22 Oct 2007 Learner Drive Vehicle W/OUT Person OPEN/P Licence Seated Beside Driver Sper MC Fined $120. Brisbane Magistrates Court 18 Dec 2007 15 Oct 2007 OObstruct [sic] Police Officer On all charges:Without conviction. Fined $400. Contravene Direction or Requirement Brisbane Magistrates Court 11 Oct 2007 26 Sept 2007 Obstruct Police Officer Without conviction. Fined $300. Pending Charge 12 March 2007 Fail to Answer Bail Granted At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above. Pending Charge 05 Jan 2007 Make threat to Kill At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above. Resist Police
(4 charges)Drunk in Public Place Use Threatening Words Public Place Assault Police
(4 charges)Intentionally Cause Injury Assault with Instrument
As listed above, in March 2012 the Applicant was found guilty by a jury of aggravated unlawfully causing harm with intent to cause harm. The offence was committed in the company of his older brother on 1 April 2010. The maximum penalty for the offence was 13 years imprisonment. The Applicant was sentenced by the District Court in South Australia to a term of imprisonment of two years and 50 weeks. The Court imposed a non-parole period of 18 months (R3, T4 at 53).
On 28 January 2014 the Applicant was released on parole (R3, T4 at 52).
On 8 December 2014 the Applicant was convicted of driving unauthorised and giving false or misleading personal details to the police officer. These offences occurred in September 2014 while the Applicant was still on parole. He was subject to a $200 bond to be of good behaviour for 12 months.
On 23 June 2015 the Minister personally cancelled the Applicant’s visa under s 501(2) of the Act (R3, T3). An application for an extension of time to seek judicial review of that decision was refused by the Federal Court.
The Applicant had never applied for, nor had he been granted, a protection visa and it remained open to the Applicant to apply for a protection visa while he was in the migration zone (see s 501E(2)(a) of the Act).
The Applicant made application for a protection visa on 21 February 2017 (R3, T7).
On 9 October 2017 the delegate of the Respondent refused to grant the Applicant a protection visa on the basis of s 36(1C) of the Act not being met (R3, T2).
The Applicant has applied to the Tribunal under s 500(1)(c) of the Act for review of that decision.
On 29 November 2017 the Applicant was convicted of the offence of riot pursuant to s 65 of the Criminal Code (WA) and sentenced to eight months imprisonment. The offending occurred on 6 October 2015 while the Applicant was in immigration detention on Christmas Island. The Applicant pleaded guilty to the riot charge and not guilty to three other charges. The Applicant was convicted of the riot offence, acquitted of one other charge and two other charges were dismissed for want of prosecution.
THE ISSUES
The Applicant identifies (Applicant’s SFIC, A1 at para. 2.1) the sole issue as being whether the Applicant is a “danger to the Australian community” under s 36(1C)(b) of the Act.
The Respondent’s SFIC (R1) identifies the issues as follows:
2.The central issues relate to whether the Tribunal considers, on reasonable grounds, that the Applicant:
2.1.has been convicted by a final judgment of a particularly serious crime, and
2.2.is a danger to the Australian community.
3.If the answer to each question is yes, then the Tribunal must affirm the decision under review. This is because it is a criterion for a protection visa that the Applicant is not a person whom the Tribunal (standing in the Minister’s shoes) considers on reasonable grounds, ‘having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community’: s 36(1C)(b) and s 65 of the Act.
The Tribunal agrees that the issues for determination by the Tribunal are as identified by the Respondent in paragraphs 2.1 and 2.2 of his SFIC.
LEGISLATIVE FRAMEWORK
The General Division of the Tribunal has jurisdiction to review a decision to refuse to grant a protection visa pursuant to s 65 of the Act, relying on s 36(1C) of the Act, under
s 500(1)(c)(i) of the Act.Section 65 of the Act provides:
(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a)if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b)if not so satisfied, is to refuse to grant the visa.
Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Amending Act) and was intended to codify Art 33(2) of the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol (the Refugees Convention) (see Sch 5, Pt 2, Item 9 of the Amending Act and the relevant explanatory memorandum).
Article 33(2) of the Refugees Convention is as follows:
Prohibition of expulsion or return (“refoulement”)
1.No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2.The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
Section 36(1C) of the Act provides:
(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.
Section 5M of the Act provides:
5MParticularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, 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; or
(b)a serious foreign offence.
Section 5 of the Act defines “serious Australian offence” as follows:
Serious Australian offence means 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.
On 6 September 2017 the Minister for Immigration and Border Protection issued a direction under s 499 of the Act to delegates who consider valid applications for Protection visas under s 47 of the Act and perform functions or exercise powers under s 65 of the Act to grant or refuse to grant Protection visas (Direction no. 75). Direction no. 75 sets out the following Principles:
1)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.
2)The Australian community expects that the Australian Government can and should refuse to grant a non-citizen a visa, if they pose a danger to the Australian community having have been convicted of a particularly serious crime in Australia or elsewhere, or present a danger to Australia's security.
3)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.
4)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.
Part 2 of Direction no. 75 explains the order that decision-makers are to follow when assessing Protection visa applications which raise character or security concerns. Relevantly, it states:
…
2)Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa-specific ineligibility criteria at section 36(1C).
3)Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).
a)Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia's non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.
4)If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.
5)The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).
The Refugee Law Guidelines (Department of Home Affairs, 1 July 2017), at Chapter 14, relevantly provide:
In considering s 36(1C)(b), each of the following elements should be considered:
•was there a crime?
•is the crime considered to be particularly serious?
•has there been conviction by a final judgement?
•does the person remain a danger to the community of Australia?
While the circumstances of a crime may indicate that the actions represent a danger to the community, decision makers must determine whether the person remains a danger to the community which may take into account any mitigating circumstances, remorse shown by the applicant and any punishments or rehabilitative corrections applied.
THE HEARING AND THE EVIDENCE
The Application was heard on 8 November 2018. The Applicant was represented by Ms Manera and the Respondent was represented by Ms Jackson.
At the hearing oral evidence was given by:
(i)the Applicant;
(ii)the Applicant’s mother;
(iii)a friend and former house-mate of the Applicant who has known him for 12 years, is a member of the South Australian South Sudanese community and who works as a youth worker in the South Australian justice system; and
(iv)the Applicant’s sister.
The following documents were admitted into evidence:
·Applicant’s Statement of Facts, Issues and Contentions dated 26 July 2018 (Exhibit A1);
·Witness Statement of the Applicant’s sister dated 5 June 2018 (Exhibit A2);
·Witness Statement of the Applicant’s mother dated 27 June 2018 (Exhibit A3);
·Witness Statement of the Applicant’s friend and former house-mate dated 6 June 2019 (Exhibit A4);
·Letter from the Resettlement Manger at Acacia Prison dated 30 May 2018 (Exhibit A5);
·Respondent’s Statement of Facts, Issues and Contentions dated 5 July 2018 (Exhibit R1);
·Respondent’s Supplementary Statement of Facts, Issues and Contentions dated 16 August 2018 (Exhibit R2);
·T-Documents, T1-T13 (Exhibit R3); and
·Supplementary T-Documents, ST1-ST5 (Exhibit R4).
The Tribunal also had before it further supplementary T-documents, ST6-ST7.
CONSIDERATION
The Applicant concedes that, by reason of his conviction for “Intentionally Cause Harm – Aggravated Offence”, the maximum term of imprisonment for which is 13 years under the Criminal Law Consolidation Act 1935 (South Australia), he has been convicted of a particularly serious crime for the purposes of s 36(1C)(b) of the Act (Applicant’s SFIC, A1 para. 1.15). The Tribunal finds that to be the case.
The live issue is therefore whether the Applicant is a danger to the Australian community.
Considering whether the Applicant poses a danger to the Australian community does not involve the exercise of a discretionary power like s 501 of the Act. If the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision: s 65 of the Act and MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 (MVLW) at [29]-[32]. It cannot balance the 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]. It is also not necessary to establish that there is a “probability” of harm: WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG) at [31]; see also MVLW at [41]-[45].
In the matter of WKCG the Tribunal considered the application of Art 33(2) of the Refugee Convention (see also BHYK and Minister for Immigration and Citizenship [2010] AATA 662 (BHYK)). As Senior Member Tavoularis found in MVLW, given the stated link between Art 33(2) of the Refugees Convention and s 36(1C)(b) of the Act, the analysis and findings in WKCG and BHYK are useful guides to the proper construction and operation of s 36(1C)(b) of the Act. With respect, this Tribunal agrees.
The Tribunal in WKCG observed that:
[25]The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
[26]Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
[27]The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36; 1 ALD 98 (Salazar), Brennan J said at ALR 38 ALD 100:
…
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. 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 level of risk.
The Respondent refers to Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148 in which the Federal Court cited Brennan J (as President of the Tribunal) in Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 100 as follows:
… [The Tribunal] noted in particular the statement by Brennan J, (as he then was) as President of the Tribunal, in Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, where at 100 the learned President had said:
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 … [the] case is at an unacceptable level of risk.
The Tribunal must make its decision applying the above legislation, principles and jurisprudence. Both parties approached the exercise by addressing the factors identified by the Tribunal in WKCG as identified in [35] above. The Tribunal agrees that this is an appropriate approach.
Seriousness and nature of the crimes committed
The Respondent points to the Applicant having committed around 30 offences ranging from obstructing a police officer and disorderly behaviour, throwing missiles, causing property damage, assault and participating in a riot (Respondent’s SFIC, R1 para. 28.1). He also refers to the failure by the Applicant on a number of occasions to comply with bail conditions.
The Respondent submits that the offence that triggered the visa cancellation was a conviction of assault, aggravated by the use of a baseball bat, and was undoubtedly serious. The Applicant was intoxicated at the time the assault took place. He was sentenced to a lengthy sentence of imprisonment, being two years and 50 weeks’ imprisonment with a non-parole period of 18 months, which is significant (Respondent’s SFIC, R1 para. 28.2).
Upon being released on parole, the Applicant reoffended and was convicted on
8 December 2014 of driving unauthorised and giving false or misleading personal details to the police officer. He was also convicted in the Magistrates Court of Western Australia for involvement in a riot while in detention on Christmas Island in October 2015 (Respondent’s SFIC, R1 para. 28.4).The Respondent submits that the Applicant’s behaviour in immigration detention and in prison has been poor. He has been involved in a number of altercations with other detainees/prisoners, including incidents as recently as February 2018, and has been recorded as being aggressive and abusive towards staff. He has also been observed as being intoxicated on a number of occasions while in detention (Respondent’s SFIC, R1 para. 28.5). That is disputed by the Applicant.
The Applicant concedes that the aggravated intentionally causing harm, involving pursuing the victim and striking him in the head with a baseball bat which fractured the victim’s skull “is no doubt … particularly serious” (Applicant’s SFIC para. 3.2). The sentencing judge made the following comments (R3, T4 at 60):
The victim in this matter was your guest, who had come to visit you and your brother, [omitted], for the afternoon. The offence is more despicable because you abused the duties of a host to a guest and you were a party to an assault on this man.
During the course of the afternoon, a group of you were drinking and became somewhat intoxicated. [omitted] commenced to bully and pester the victim to fight him. When the victim saw that he was not welcome and sought to leave, you and your brother pursued him some several hundred metres to the intersection of [omitted] and [omitted] and there you assisted your brother to chase and catch him and smash a baseball bat on his head, causing him to suffer a fractured skull.
This is not the first time you have been involved in acts of violence. Since being in this country, you have been involved in approximately 70 separate offences, including this one. These offences include a number of offences for fighting, resisting police, assaulting police, threatening violence, carrying an offensive weapon and assault. Your offending on this occasion is most serious. A significant injury was caused by the blow to the head of the victim.
The attack on the victim was sustained and not merely a spur-of-the-moment incident. He was pursued relentlessly by two of you until you caught up with him.
The Applicant submits that aside from the two violent offences being the aggravated intentionally causing harm and the taking part in a riot, the Applicant’s other offences are relatively less serious, however, concedes, correctly in the Tribunal’s view, “that the Applicant’s offences, viewed cumulatively, show disregard on the Applicant’s part for the laws of Australia” (Applicant’s SFIC, A1 para. 3.5).
The Tribunal agrees with the Applicant’s own assessment of the seriousness and nature of the Applicant’s crimes and that they do show disregard on the Applicant’s part for the laws of Australia.
Length of sentences imposed
The Applicant’s submission (Applicant’s SFIC, A1) in relation to this factor is:
3.6The Applicant was first imprisoned in 2012, and then for a second time in 2017.
3.7For the offence of aggravated intentionally causing harm, the Applicant was sentenced on 9 March 2012 to a term of imprisonment of 2 years and 50 weeks.
3.8For the offence of taking part in a riot, the Applicant was sentenced on 27 November 2017 to a term of imprisonment of 8 months.
3.9On the basis of the sentences above, we concede that the Applicant has been subject to lengthy periods of imprisonment for his offences.
Again the Tribunal agrees with the Applicant’s assessment of the length of the sentences imposed. The lengths of these sentences indicate the seriousness with which the criminal justice system, reflecting the community’s attitude, treats these sorts of offences.
Mitigating or aggravating factors
The Applicant says that his childhood in Sudan was spent in harsh conditions, poverty and violence. His father was killed in the Sudanese civil war and as a result the Applicant lost the only male role model in his life. The Applicant says that even when he came to Australia, he still faced family problems which, he says, contributed to his “poor emotional development” (Applicant’s SFIC, A1 para 3.10) and that because of this he “did not have the ability to manage his emotions, especially negative ones such as anger and sadness” (Applicant’s SFIC, A1 para. 3.11).
A psychological report dated 13 November 2011 prepared by Mr Greg Ireland, forensic psychologist, (R4, ST2 at 89) observed that:
[the applicant] stated that he drinks a lot of alcohol but does not use any other drugs. He drinks mainly on weekends. He associated being angry with drinking a lot of alcohol; he explained he will isolate himself from others and drink until he passes out. He feels it allows him to have time out and with alcohol he does not feel as “fucked up” and for a time feels good.
He admitted that drinking alcohol makes it more likely he will act out and he noted that most of his trouble with the law is associated with him using alcohol at the time.
The Tribunal accepts that the Applicant’s antecedents are a mitigating factor.
The criminal history in totality
The Applicant concedes, as he must, that he has a lengthy offending history over a considerable period (Applicant’s SFIC, A1 para. 3.16). The Tribunal agrees with the Applicant’s assessment.
The nature of the prior crimes
Under this heading in his SFIC, the Applicant asserts that it is clear from “recent correspondence … he expresses deep remorse for his past actions” (Applicant’s SFIC, A1 para. 3.17). Those submissions go on to refer to comments made by the Applicant’s friend in his witness statement (A4) and to statements made by the Applicant to the effect that he is aware of the “pain and fear” that his actions have caused to the community and to his family for which he is deeply sorry. He made similar statements at the hearing.
The passage from the Applicant’s friend’s witness statement quoted in the Applicant’s SFIC (A1) contains the following claim:
[the Applicant] is very aware of the impact of his actions on others and once again has demonstrated a lot of remorse, this is one thing he cannot change his past but is willing to take a second chance and prove himself.
The fairly obvious retort to that statement is that the Applicant has repeatedly been given “a second chance” and has continued to offend. The claim does not sit at all well with the Applicant’s own concession that he has a lengthy offending history and that the seriousness and nature of his offending shows a disregard for the laws of Australia.
It is not clear how the submissions made by the Applicant’s SFIC under this heading relate to the nature of the prior crimes, however, it is the Tribunal’s view that any remorse shown by the Applicant is remorse that his repeated serious offending has brought the Applicant to the point of having his visa cancelled, his application for the Protection visa being rejected and his potential removal from Australia. It is not, in the Tribunal’s assessment, remorse driven by any recognition of the harm that his serious criminal conduct has had on the Australian community. Someone who genuinely felt the type of remorse now claimed by the Applicant would not have repeatedly reoffended as the Applicant has.
The Tribunal also did not get any sense of genuine remorse from the Applicant’s demeanour in the hearing. He was at times uncooperative, evasive and argumentative, answering counsel back in cross-examination (Transcript at 19-20). At one point the Tribunal had to direct the Applicant to stop trying to argue with counsel and answer the question put to him (Transcript at 31). He claimed to have no memory of charges relating to carrying an offensive weapon and assaulting a police officer which appear on his record (Transcript at 21-23) and claimed not to remember fairly basic details about the serious offence involving him hitting someone in the head with a baseball bat (Transcript at 26-28). He was an unsatisfactory witness.
Period over which the crimes took place
The Applicant concedes that his offending spans a significant period of his time in Australia (Applicant’s SFIC, A1 para. 3.20).
Risk of re-offending/likelihood of relapsing into crime
The Applicant submits that the most serious of the Applicant’s offences, the aggravated intentionally causing harm was committed in the company of his brother. The Applicant asserts that as his brother has been unsuccessful with his appeal to the Tribunal on the Respondent’s refusal of his protection visa, his brother is presently in detention and faces the prospect of removal. The Applicant submits that because of this, if he were allowed to stay in Australia, it is unlikely that he will have contact with his brother thereby lowering the Applicant’s risk of re-offending (Applicant’s SFIC, A1 para. 3.21).
The Tribunal rejects that argument. It is of concern to the Tribunal that the Applicant seeks to blame his brother for the savage attack in which the Applicant, not his brother, struck someone in the head with a baseball bat fracturing his skull. There is nothing in the material before the Tribunal, including the sentencing judge’s remarks, that suggests that the Applicant’s brother was the instigator of the assault or incited the Applicant to attack the victim. Secondly, if, as the Applicant is suggesting, his brother is such a negative influence on him, he does not appear to be making any commitment on his own account not to associate with his brother, but rather simply arguing that if his brother is deported he will not be a negative influence on him because he will not be in Australia. Presumably, however, if his brother is not deported he will associate with him notwithstanding the apparent negative influence he is supposed to have on him.
In relation to his involvement in the riot, the Applicant submits that that was after a long period of isolation from his family and friends and “he deeply regrets actions and attributes them to making bad choices and a frustrated state of mind” (Applicant’s SFIC, A1 para. 3.22). Undoubtedly it is the case that the Applicant regrets the bad choices that he has made because as a result of a succession of “bad choices” he now finds himself facing the prospect of being deported. That regret, however, provides no comfort to the Tribunal that the Applicant will not continue to make bad choices if he were allowed to stay in Australia. His criminal history suggests otherwise.
In relation to the convictions for “giving false or misleading personal details to officer” and “unauthorised person drive motor vehicle on road”, committed while the Applicant was on parole, the Applicant submits that he was prompt to admit to his parole officer that it was an immensely foolish and short-sighted mistake on his part which he attributes to his lack of a sense of responsibility at that time (Applicant’s SFIC, A1 para 3.23). That clearly does not excuse or even diminish the offences. The Applicant’s apparently prompt “explanation” does not provide any comfort on the question of the likelihood of the Applicant continuing to offend.
The Applicant refers to various courses that he has undertaken while in prison. He submits that the Stairway to Success and Acacia Skills for Life courses have taught him the importance of being accountable for one’s own actions and thinking before acting, regardless of how small or insignificant the act may seem at the time (Applicant’s SFIC, A1 para. 3.23).
The Applicant says that if he is allowed to stay in Australia he will live with his mother and intends to further his studies and seek employment (Applicant’s SFIC, A1 para. 3.24). He says that most of the offences that he has committed were under the influence of alcohol and that he has not consumed alcohol since going into prison in 2015. He submits that given that the Applicant’s most serious offence of aggravated intentionally causing harm was committed whilst he was intoxicated, now that he no longer drinks there is little, if any, chance that the Applicant would commit an offence of that nature again in the future (Applicant’s SFIC, A1 para. 3.25). Even if the Tribunal were to accept that proposition, it does not address the other serious offences with which the Applicant has been charged which were not committed while he was intoxicated. In particular the Applicant’s involvement in the riot while in detention was not committed while he was under the influence of alcohol.
The Applicant asserts that he has demonstrated his ability to control his alcohol consumption (Applicant’s SFIC, A1 para. 3.25). Presumably the Applicant is referring to his time in prison as demonstrating his ability to control his alcohol consumption. The fact that the Applicant may not have drunk while in prison does not demonstrate that the Applicant would control his alcohol consumption if he were to be released into the community.
Prospects of rehabilitation
The Applicant points to the Support Management Plan submitted to the Tribunal on 26 July 2018 and to the courses that he has undertaken while in prison which he identifies as (Applicant’s SFIC, A1 para. 3.26-3.27):
(i)Acacia Skills for Life course: three to four week course, twice a week, three to four hours per session, still in progress;
(ii)Alternatives to Violence Project WA Workshop for Training in Peaceful Pathways, completed on 8 April 2018;
(iii)Stairway to Success program, completed on 2 February 2018;
(iv)Develop Verbal Communication Skills, completed on 3 June 2016.
(v)Introduction to Workplace Health and Safety, completed on 15 April 2016; and
(vi)St John First Aid Course, completed approximately March or April 2017.
The Respondent submits that while the Applicant has expressed remorse, attended some counselling and completed voluntary programs, including the Stairways to Success on
1 February 2018 and Alternatives to Violence Project on 7 May 2018, it is unclear what these programs involved and he does not appear to have formally addressed his alcohol abuse and anger management issues as recommended by the psychologist (Respondent’s SFIC, R1 para. 28.4).
While the comment that it is not clear what the programs involved may be a little unfair given the summary of the aims of some of the programs set out in the Applicant’s SFIC (A1 paras. 3.28-3.33), the Respondent’s concern about the Applicant not undertaking a program to address his alcohol issues is a legitimate one. In effect all that the Tribunal has at the end of the day is the Applicant’s assertion that he has his alcohol issues under control. As he has been in prison effectively for the whole of the time that the Applicant says that he has controlled his alcohol problem there is no way that that claim can be assessed or tested with regard to the environment that will prevail should the Applicant be released into the community.
A number of witnesses gave statements and evidence as to the Applicant’s good character. His mother and his sister spoke to the Applicant’s positive characteristics. His mother referred to his integrity, selflessness and his leadership skills and said that if he was released back into the community she would support him to “get his life back on track” (A3). His friend from Adelaide who has known the Applicant for 12 years, described the Applicant as a “capable young man” and a hard worker (A4).
While the Tribunal has no doubt as to the sincerity of those who have spoken in positive terms of the Applicant and of their willingness to support the Applicant, it must be noted that the Applicant had that or similar support when he committed the numerous and serious offences for which he has been convicted.
At paragraph 28.6 of his SFIC, the Respondent summarises the position as follows:
The Applicant’s repeat offending and failure to comply with judicial orders shows a disregard for the law and indicates that he presents as a real risk of reoffending and thus the propensity of relapsing into criminal activity.
The Tribunal agrees with the Respondent’s assessment. Taking into account the factors identified in WKCG as set out in the headings above, there are reasonable grounds to believe that the Applicant would be a danger to the Australian community if he were to be granted a visa. The Tribunal is not satisfied that the Applicant’s alcohol and anger management issues have been addressed or that his admitted disregard for the laws of Australia (see [43] above) has changed.
The Applicant’s counsel in closing submitted that the Applicant has changed. She points to the fact that the Applicant’s last conviction was involvement in the riot in October 2015. The obvious answer to that is that the Applicant has been in prison since then. Presumably his opportunities for offending have been significantly restricted. The assertion that he is a changed person has not been tested in the environment of the community.
Even in relation to the Applicant having not offended while in prison, it was acknowledged by the Applicant’s counsel in closing that there was evidence in the Serco records produced under summons indicating that the Applicant had been involved in incidents while in prison including a fight with another prisoner in February 2018 (Transcript at 73-74).
In the end all that we have is the Applicant’s statements that he will not offend in the future. The number, nature and frequency of his offending in the past, however, indicate otherwise.
CONCLUSION
The Tribunal finds that:
(i)the Applicant has been convicted by a final judgment of a particularly serious crime, and
(ii)the Applicant is a danger to the Australian community; and
(iii)accordingly, the Applicant does not satisfy the criterion in s 36(1C)(b) of the Act.
Direction no. 75
Both the Applicant and the Respondent set out the provisions of Direction no. 75 in their respective SFICs. Neither party, however, makes any submissions as to how Direction no. 75 is to be applied in the present case. Other than reproducing certain provisions of Direction no. 75, the Respondent makes no reference to it. Having also reproduced certain provisions of Direction no. 75, the Applicant’s only statement which may relate to the direction is:
3.41. The Applicant has been found to be a ‘refugee’ under Section 5H of the Act, and also a person to whom Australia owes protection obligations under Section 36(2)(aa) of the Act. If a protection visa is refused, the Applicant will either be detained on an indefinite basis or, alternatively, be returned to South Sudan, where there is a real risk he will suffer significant harm.
Paragraph 1) in Part 2 of Direction no. 75 requires the decision-maker to first assess the applicant’s refugee claims with reference to s 36(2)(a) and any complimentary protection claims with reference to s 36(2)(aa) of the Act “before considering any character or security concerns”. Paragraph 2) of Part 2 of Direction no. 75 directs that where the applicant meets the refugee criteria in s 36(2)(a) of the Act, the decision-maker must consider the ineligibility criteria at s 36(1C) of the Act.
In the present case the delegate’s decision under review specifically addressed the Applicant’s refugee claims under s 36(2)(a) of the Act and complimentary protection claims under s 36(2)(aa) of the Act and found that in both cases the Applicant was owed protection obligations (R3, T2 at 20 and 21 respectively). Not surprisingly, those decisions of the delegate are not sought to be reviewed in this application. In these circumstances, where the original decision-maker’s decisions under those sections is not sought to be reviewed, Direction no. 75 has no application in the Tribunal’s review. The Applicant’s entitlement to protection under ss 36(2)(a) and 36(2)(aa) of the Act has been decided.
DECISION
The decision of the delegate of the Respondent to refuse the Applicant a Protection (class XA, subclass 866) visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.....[sgd]...................................................................
Associate
Dated: 12 February 2019
Date of hearing: 8 November 2018 Representative for the Applicant: Ms S.L Manera Solicitors for the Applicant: Rothstein Lawyers Representative for the Respondent: Ms M Jackson Solicitors for the Respondent: Australian Government Solicitors
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