SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1515
•27 May 2021
SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1515 (27 May 2021)
Division:GENERAL DIVISION
File Number:2020/5510
Re:SLGS
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:27 May 2021
Place:Perth
The Reviewable Decision of the delegate of the Respondent dated 13 August 2020 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]..........................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – refusal to grant a protection visa – Applicant has been convicted by a final judgment of a particularly serious crime – jurisdiction of the Tribunal to consider whether Applicant unlawfully detained – whether the Tribunal can take into account the considerations relevant to a visa cancellation under s 501 of the Migration Act 1958 (Cth) – Tribunal’s role to conduct a de novo review on the merits – whether Applicant is a danger to the Australian community – seriousness and nature of the crimes committed – length of sentences imposed – whether any mitigating or aggravating circumstances – extent of the criminal history – nature of the prior crimes – risk of reoffending and recidivism and the likelihood of relapsing into crime – the criminal record as a whole – prospects of rehabilitation – Applicant found to be a danger to the community – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 5, 5(1), 5M, 5M(a), 36(1C), 36(1C)(b), 36(2)(a), 36(2)(aa), 36(2C)(b), 65, 65(1)(b), 499(1), 500(1)(c)(i), 500(6B), 501, 501BA, 501CA, 501CA(4)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
CASES
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1978) 41 FLR 338
DOB18 v Minister for Home Affairs (2019) 269 FCR 636
DOB18 v Minister for Home Affairs [2019] HCASL 331
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Esber v Commonwealth (1992) 174 CLR 430
Faulkner and Comcare (2007) 45 AAR 467
LKQD and Minister for Immigration and Border Protection [2018] AATA 2710
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665
RWDX and Minister for Immigration and Border Protection [2019] AATA 123
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SZOQQ v Minister for Immigration and Citizenship (2012) 126 ALD 200
TYXB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 9
Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148
WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 38
WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434
SECONDARY MATERIALS
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967) – Art 33(2)
Minister for Immigration and Border Protection, Direction No 75: Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) (6 September 2017)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
27 May 2021
OVERVIEW
The Applicant is a 25-year-old man who was born in Khartoum, Sudan. In his application for a protection visa he stated his citizenship as “South Sudan” (T4/22).
He seeks review of a decision of a delegate of the Respondent (the Delegate) dated
13 August 2020(T13/153–200). This will be referred to as the Reviewable Decision.
The Reviewable Decision was a decision to refuse to grant the Applicant a Protection
(Class XA) (Subclass 866) visa (Protection Visa) under s 65(1)(b) of the Migration Act 1958 (Cth) (the Act). The Delegate decided that the Applicant did not meet the criterion in ss 36(1C) and 36(2C)(b) of the Act because he had been convicted of a “particularly serious crime” and was considered by the Delegate to be a danger to the Australian community (T13/194 and 200).The Delegate’s decision record was 50 pages long and contains detailed reasons. The Delegate’s findings included that the Applicant was a person in respect of whom Australia owed protection obligations because he met the criteria in ss 36(2)(a) and 36(2)(aa) of the Act, including that there was a real chance of persecution if he were returned to South Sudan. The Delegate also recognised that “the applicant may be subject to prolonged indefinite detention in Australia” but noted that this was not a relevant consideration as to whether the Applicant satisfied the criteria for a protection visa (T13/200).
On 11 September 2020, the Applicant filed an application in this Tribunal seeking a review of the Reviewable Decision (T2). This was one day after the 28-day time limit prescribed by s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), and so the Minister consented to an extension of time.
The reasons for the application were stated in the application form as follows (T2/8):
The decision was wrong. [The Applicant] has been in Australia since he was ten years old. He came to Australia as a refugee. The Decision recognises that [the Applicant] is a person to whom Australia owes a protection obligation and cannot be deported to any country. That means he faces indefinite detention. [The Applicant] is only 24 years old. He has great prospects for rehabilitation. He has learned for the offences he committed when he was 19 years old. It was therefore wrong for the Minister to not take into account his age and the time the offences were committed; the impact on his family and his individual well-being.
The Tribunal has jurisdiction to review the Reviewable Decision pursuant to s 500(1)(c)(i) of the Act.
BACKGROUND
The Applicant arrived in Australia on 25 May 2006 on a subclass XB-202 Global Special Humanitarian visa (Humanitarian Visa) when he was approximately 10 years old (T13/153). He left Sudan when he was approximately eight years of age, living in Egypt as a refugee before travelling to Australia with his mother and siblings.
The Applicant has approximately 39 criminal and traffic convictions (T11/81–82). These include being convicted of the following offences (the dates stated are the conviction dates):
(a)failing to answer bail on 4 March 2016;
(b)being drunk in a public place on 11 August 2016;
(c)two charges of commit indictable offence whilst on bail, as well as charges for theft from shop, tamper with motor vehicle, fail to answer bail and unlicensed driving on 15 March 2017;
(d)31 offences on 16 August 2018 including driving whilst disqualified, unlicensed driving and driving whilst suspended, criminal damage, receiving stolen goods, affray, theft, resisting police officer, possession of cannabis, possession of prohibited weapon without exemption, committing an indictable offence whilst on bail, recklessly causing injury and intentionally damaging property for which he was sentenced to an aggregate term of 15 months imprisonment.
On 20 December 2018, the Applicant’s Humanitarian Visa was cancelled under s 501 of the Act (T13/153). The Applicant did not seek revocation of this cancellation decision.
The Applicant lodged an application for a protection visa on 19 November 2019 (T4/12–33). As outlined above, on 13 August 2020, the Delegate made the Reviewable Decision which, as described in paragraphs [3] and [4] above, refused the Applicant’s application for a protection visa.
ISSUES
The issues that require determination by the Tribunal are whether the Tribunal considers, on reasonable grounds, that:
(a)the Applicant has been convicted by a “final judgment of a particularly serious crime”; and
(b)whether the Applicant is a danger to the Australian community.
The Applicant’s representative, Mr Mayek, submitted that there were additional issues for the Tribunal to consider. These were:
(a)“[w]hether having regard to the considerations in Ministerial Direction No. 79 of the Migration Act 1958 (Cth), there are reasons why the Applicant should be granted a protection visa” (Ministerial Direction issue);
(b)“[w]hether the Applicant is being unlawfully detained in immigration detention as a consequence of the Refusal Decision” (Unlawful Detention issue); and
(c)“[w]hether the Refusal Decision constitutes a jurisdictional error” (Jurisdictional Error issue).
Ministerial Direction issue and Unlawful Detention issue
The Applicant’s representative submitted that Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) (Direction No 79) made under s 499(1) of the Act is relevant to the Applicant’s application (Applicant’s Statement of Facts, Issues and Contentions (SFIC), paragraph [21] and transcript, page 9). Direction No 79 has now been replaced with Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 90). However, as the name suggests, Direction No 90 only applies to decisions made under ss 501 and 501CA. In this application, the Reviewable Decision was made under s 65(1)(b) of the Act, relying on s 36(1C) of the Act, not under ss 501 or 501CA.
The Applicant’s representative also made submissions to the effect that the Tribunal should “take note of the fact … that a likely consequence of the protection visa refusal may … be indefinite detention” (transcript/13 and Applicant’s SFIC, paragraphs [83]–[107]). The plain wording of s 36(1C)(b) provides that the Minister (and in this case the Tribunal standing in the shoes of the Minister) is to consider whether the Applicant has been convicted by a final judgment of a particularly serious crime, and whether he is a danger to the Australian community. Section 65 requires that if the criteria for the grant of the visa have not been satisfied, the Minister “is to refuse to grant the visa”. The plain wording of s 65 indicates a lack of discretion.
This was explained by Deputy President Boyle in RWDX and Minister for Immigration and Border Protection [2019] AATA 123 (RWDX) at [34]–[37]:
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] AATA 512; (2009) 110 ALD 434 (WKCG) at [31]; see also MVLW at [41]-[45].
(Original emphasis.)
Accordingly, this Tribunal finds that there is no discretion for it to balance any danger the Applicant may pose to the community against other factors including the considerations in Direction No 90 (such as the expectations of the Australian community, international non-refoulement obligations, the impact on family members and the Applicant’s ties to Australia), or any other consequences for the Applicant such as prolonged or indefinite detention, despite the Applicant’s representative having made lengthy written submissions about these considerations. For completeness, the Applicant’s representative made a related submission that the Tribunal should consider issues that were relevant to a prior cancellation of the Applicant’s Humanitarian Visa under s 501 of the Act as part of the current application. This was, he submitted, because both the visa cancellation and the current application before the Tribunal concerned questions of character and involved a consideration of the Applicant’s offending, and therefore “the issues are exactly the same” (transcript/10–11). However, the Tribunal’s jurisdiction to review that application was not enlivened for several reasons, including because the Applicant did not seek review of that decision (see generally, ss 501CA(4) and 500(6B) of the Act). There are two separate decisions and only one of them is before this Tribunal, being the decision to refuse to grant the Applicant a protection visa under s 65(1)(b) of the Act. For the reasons already explained, the issues concerning these two separate decisions cannot be merged.
Jurisdictional Error issue
With respect to the Jurisdictional Error issue, the Applicant’s representative submitted that “[t]he Minister’s decision to refuse [the Applicant’s] Protection visa application constituted a jurisdictional error because the Minister misunderstood the legal consequence of the Refusal Decision” (Applicant’s SFIC paragraph [108]).
The Tribunal is an executive body that is required to “stand in the shoes of the decision-maker” in order to “arrive at its own decision” (Esber v Commonwealth (1992) 174 CLR 430 at 440). In other words, the “Tribunal’s task is to do over again what the original decision-maker did” (Hayne and Heydon in JJ Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 315 at [101] (Shi), quoting Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 502 per Kitto J). The nature of the Tribunal’s review is sometimes described as a review “de novo” or “from the beginning”. As was explained by Senior Member Hunt in Faulkner and Comcare (2007) 45 AAR 467, 473 [27]:
The Tribunal aims to reach the correct and preferable decision on the basis of the material before it … and is often said to stand in the shoes of the original decision-maker and consider all the evidence again and from the beginning.
Issues of law are often considered and applied by the Tribunal in order to reach the correct or preferable decision, however, the Tribunal is an executive, not judicial, body. The Tribunal’s role is not to undertake judicial review. That is for the courts. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1978) 41 FLR 338, Smithers J stated, at 368 that, “[i]t is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review”.
The Tribunal’s role is to undertake a broader review, known as “merits review”. The role of the Tribunal is not to focus on faults or legal errors in the original decision-maker’s decision. In Shi at 327 [140], Kiefel J stated that, “the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision”. If the Tribunal focussed on legal errors made by the decision-maker, it would not be fulfilling its statutory function to conduct merits review – that is, the Tribunal would not be remaking the decision-maker’s decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Bowen CJ and Deane J stated at 419 that:
The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
Consequently, because the role of this Tribunal is to stand in the shoes of the Delegate to undertake a de novo merits review, the Tribunal is unable to make a finding that the Delegate committed jurisdictional error. The Tribunal may however, after reviewing the material before it, reach a different decision than that of the Delegate, and can vary, set aside and substitute, or set aside and remit the decision for reconsideration (see s 43(1) of the AAT Act).
The Tribunal finds that the issues before it are only those stated in paragraph [12] above.
MATERIAL BEFORE THE TRIBUNAL
The application was heard on 21 April 2021 by videoconference. The Applicant was represented by Mr Mayek of Mayek Legal and the Respondent was represented by
Mr Burgess of Sparke Helmore Lawyers.At the hearing, the Applicant gave oral evidence and was cross-examined.
The following documents were admitted into evidence at the hearing:
(a)bundle of documents titled “Applicant's Tribunal Documents” comprising 35 pages (Exhibit A1);
(b)section 37 documents numbered T1 to T13 comprising 201 pages (Exhibit R1); and
(c)section 38AA documents indexed one to six comprising 124 pages (Exhibit R2).
After the hearing the Tribunal sought further submissions from the parties to clarify the number of the Applicant’s convictions, and additionally to confirm the offences that the Respondent claimed met the statutory definition of “serious Australian offence” under s 5 of the Act. Submissions were received from the Respondent’s representative on 13 May 2021 and from the Applicant’s representative on 21 May 2021, and again from both parties on
24 May 2021.
LEGISLATIVE FRAMEWORK
The relevant provisions of the Act include:
(a)section 65;
(b)section 36(1C), which was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) to codify Article 33(2) of the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol; and
(c)sections 5M and 5 of the Act which define “particularly serious crime” and “serious Australian offence”.
The legislative framework was summarised by Deputy President Boyle in RWDX at [18]–[24]:
18. 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.
19. 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.
20. 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).
21. 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.
22. 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.
23. Section 5M of the Act provides:
5M Particularly 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)serious Australian offence; or
(b)a serious foreign offence.
24. 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.
(Original emphasis.)
The Deputy President, at [25]–[26], continued on to outline relevant parts of Direction No. 75: Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) (Minister for Immigration and Border Protection, 6 September 2017) (Direction No 75), as well as the relevant policy guidelines, being the Refugee Law Guidelines (Department of Home Affairs, 1 July 2017):
25. 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.
26. 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).
27. 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 Respondent (at paragraphs [20] and [21] of his SFIC) referred to the differing interpretations of “danger to the Australian community” under s 36(1C)(b) of the Act by Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG) (frequently applied by the Tribunal), and by Logan J in the more recent decision of DOB18 v Minister for Home Affairs (2019) 269 FCR 636 (DOB18).
In WKCG, Deputy President Tamberlin articulated a broader assessment of “danger” in the context of s 36(1C)(b) of the Act, at 439 [31]:
The language of the Article directs attention to the expression ‘danger’. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at ALR 38; ALD 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression ‘danger’ involves a lesser degree of satisfaction than that required by the expression ‘probable’.
(Original emphasis.)
Deputy President Tamberlin’s approach has been applied in subsequent Tribunal decisions including BHYK and Minister for Immigration and Citizenship [2010] AATA 662 (BHYK); MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 (MVLW); LKQD and Minister for Immigration and Border Protection [2018] AATA 2710; RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665.
DOB18
was a decision of the Full Court of the Federal Court which involved the judicial review of an exercise of power under s 501BA of the Act. Logan J, by way of obiter at 657 [83], articulated a narrower interpretation of “danger” to Deputy President Tamberlin in
s 36(1C) of the Act:
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a ‘risk’, perhaps small. In my view, read in context, ‘danger’ in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about ‘danger’. In my view, it carries a narrower and more restrictive meaning that just ‘risk’.
(Emphasis added.)
On 16 October 2019, the High Court refused special leave to appeal the decision in
DOB18 v Minister for Home Affairs[2019] HCASL 331.
In WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 38 (WGKS), at [35], Senior Member Furnell observed that the weight of the authorities appeared to support an approach more consistent with WKCG. This Tribunal agrees. However, ultimately, Senior Member Furnell found that in WGKS, it was not required to decide between the two interpretations because he was satisfied that the Applicant was a danger to the community regardless of which test was followed. This Tribunal adopted a similar approach in TYXB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 9.
The Respondent also noted (at paragraph [22] of his SFIC) that in LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17 Jackson J, at 30 [56]–[57] rejected a submission that “the danger referred to in s 36(1C) must be construed to mean a very serious danger”. His Honour stated, at 30 [57]:
I agree with Deputy President Tamberlin where, in WKCG at [25], he observed that the words used in Art 33(2) are ‘plain and simple English’. By extension, so are the words of s 36(1C)(b). And the section does not say ‘very serious danger’. It just says ‘danger’.
The Respondent further submitted that the differing approaches of Deputy President Tamberlin and Logan J were not so different and could be reconciled. Specifically, the Respondent submitted (in paragraph [23] of his SFIC):
In the Minister’s submission, there is no material departure in the approach of Logan J in DOB18 as against the reasoning of DP Tamberlin in WKCG. Insofar as Logan J’s standard requires a present risk of danger, DP Tamberlin at [31] observed that danger in Art 33(2) of the Refugees Convention, on which s 36(1C) was modelled, calls for the decision-maker to have regard ‘to the future as well as the present’ and that the provision ‘is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future’. As for a serious risk of danger, DP Tamberlin observed that a ‘real or significant risk or possibility of harm’ was sufficient – that is, a ‘real or significant risk of harm’ or a ‘real or significant possibility of harm’. That standard conforms with that of Logan J, who at [82] in DOB18 accepted that the concepts of ‘real risk’ and ‘danger must be real’ were consistent with his view that ‘danger’ carried a qualitatively different meaning to ‘risk’.
The Tribunal agrees that the different approaches of Deputy President Tamberlin and Logan J can be reconciled in this manner.
The Respondent further submitted that, even considering any underlying tensions between the tests, regardless of which test is adopted by the Tribunal in this matter, the Applicant is a danger to the Australian community.
The Tribunal agrees with this conclusion, for the reasons explained below.
CONSIDERATION
Convicted by a final judgment of a particularly serious crime
The Respondent submitted that the Applicant has been convicted by a final judgment of several particularly serious crimes. The Applicant conceded that he has been convicted by a final judgment of a particularly serious crime. The Tribunal agrees with the parties for reasons that will now be discussed.
On 16 August 2018, the Applicant was sentenced in the Melbourne County Court to an aggregate term of 15 months’ imprisonment, for 31 offences including the following:
(a)One count of “recklessly cause injury” pursuant to s 18 of the Crimes Act 1958 (Vic) (Crimes Act) (T11/138). This was an offence against a girlfriend that was committed on 4 December 2017. The Applicant struck the victim in the face causing a cut above and swelling to her eye (T11/98; R2/75). The offence is punishable by imprisonment for a maximum term of five years and involves violence against a person.
(b)One count of common law “affray”. This offence occurred on 2 April 2016 when the Applicant was involved in a drunken fight with three other men in an alleyway in the Melbourne city area. The offence of “affray” involves violence against a person or persons and is punishable by a maximum penalty of five years imprisonment (Crimes Act s 320).
Based on the convictions of “recklessly cause injury” and “affray”, the Tribunal finds that the Applicant has been convicted by a final judgment of particularly serious crimes, that are “serious Australian offence[s]” under s 5M(a) of the Act. A serious Australian offence is defined in s 5(1) of the Act to include an “offence that involves violence against a person” (definition of “serious Australian offence” para (a)(i)) and which is punishable by a maximum term of imprisonment of not less than three years (definition of “serious Australian offence” para (b)(iii) of the Act). The basis for the Tribunal’s finding is that each of these offences (recklessly cause injury and affray) involved violence against a person and is punishable by a maximum term of five years’ imprisonment.
The remaining issue that the Tribunal will now determine is whether the Applicant is a danger to the Australian community.
Whether the Applicant is a danger to the Australian community
In RWDX, Deputy President Boyle summarised relevant case law regarding whether an applicant poses a danger to the Australian community.
These cases included MVLW, SZOQQ v Minister for Immigration and Citizenship (2012) 126 ALD 200, BHYK and Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148 (Vabaza) and WKCG.
In RWDX Deputy President Boyle stated (at [35]–[37]):
35. In the matter of WKCG the Tribunal considered the application of Art 33(2) of the Refugee Convention (see also 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.
36. 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 [1911] ArgusLawRp 112; (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.
37. The Respondent refers to Vabaza … 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.
A more concise summary can be seen in the following passage from Deputy President Handley in BHYK at [35], in which he agrees with the approach of Deputy President Tamberlin in WKCG:
… the Tribunal must determine whether there is a real or significant risk or possibility of harm to one or more members of the Australian community. An assessment must be made of the likelihood of the applicant reoffending by reference to past circumstances, including criminal history, and of the applicant’s prospects for rehabilitation.
In summary, in order to consider whether there is a “real or significant risk or possibility of harm to one or more members of the Australian community”, the Tribunal should consider the circumstances of each individual case, with reference to the following factors identified by the Tribunal in WKCG at 438 [26], being:
(a)the seriousness and nature of the crimes committed;
(b)the length of the sentence imposed;
(c)whether there are any mitigating or aggravating circumstances;
(d)the extent of the criminal history;
(e)the nature of the prior crimes;
(f)the period over which these prior crimes took place;
(g)the risk of re-offending and recidivism and the likelihood of relapsing into crime;
(h)the criminal record as a whole; and
(i)prospects of rehabilitation.
The factors in WKCG will now each be considered by the Tribunal. The Tribunal observes that some of these factors are similar and overlap and have therefore been considered together.
Nature of the crimes committed
The Applicant’s adult convictions include offences involving:
(a)violence, such as “unlawful assault”, “recklessly cause injury”, and “affray”;
(b)the possession of weapons, such as “possess controlled weapon without excuse” and “possess prohibited weapon without exemption/approval”;
(c)theft and stolen goods, such as “burglary”, “theft from motor vehicle”, “obtain property by deception”, “theft”, “theft of bicycle” and “handle/receive/retention stolen goods”;
(d)driving offences, such as “unlicensed driving”, “drive whilst disqualified” and “driving whilst authorisation suspended”;
(e)breaches of court orders (specifically several charges for “fail to answer bail”);
(f)a disregard for lawful authority, such as “resist police officer”, “state false name when requested” and “state false address when requested”;
(g)property offences, such as “criminal damage (intent damage/destroy)” and “intentionally damage property”; and
(h)other offences, such as “drunk in a public place” and “possess cannabis”.
The Tribunal will now detail the circumstances of some of these above-mentioned offences.
The “recklessly cause injury” and the “unlawful assault” offences involved violence against two former girlfriends.
The “unlawful assault” incident referred to above, involved the Applicant holding the victim’s arms while his new girlfriend pulled the victim’s hair and hit her in the face with an open hand. The sentencing remarks state that “[t]he victim was crying in pain”. The victim flagged down a passer-by in a car and used the passer-by’s telephone to call 000 (T11/96). When reporting the unlawful assault incident to police, the victim told police that the Applicant had a firearm underneath his mattress. When police searched the house, they found a small imitation revolver under the bed (T11/96).
Regarding the “recklessly cause injury” offence, the Applicant “struck the victim to the face using his fist, causing a cut above the victim’s right eye and swelling of the same” while they were both in the back seat of a vehicle (T11/98). At the time of the offence, the Applicant had been in a relationship with the victim for approximately a year. The victim escaped the Applicant through the rear car window because the doors were locked. The Applicant continued to chase her on foot and had to be restrained by his friends from further assaulting the victim. When police arrived, the Applicant continued to chase the victim’s friend and ignored police demands to stop. Police were forced to use capsicum spray on the Applicant “in an attempt to prevent further assaults” (T11/98). The victim was described as “unable to open her right eye and was very distressed” and had to be taken to hospital by ambulance for treatment (T11/99).
As noted above, the “affray” charge resulted from the Applicant being in a drunken brawl where he was fighting with other males in an alleyway (T11/85). When seated on the ground by police, the Applicant was seen attempting to remove and conceal a “sheath kitchen knife”. When searched by police the Applicant, “proceeded to thrash about whilst continuing to swear and scream abuse in the direction of police” (T11/85–6). When police searched the Applicant, they found five mobile phones which were believed to be stolen (T11/86). As was further stated in the sentencing remarks (T11/86–7):
[The Applicant] has attempted to decamp resulting in the same to be restrained and taken to the ground and subdued by police. Upon being taken to the ground, he had been forced into the pod and also kicked the door numerous times, preventing police from closing the pod door.
The Applicant has also committed numerous driving offences. On 10 July 2015, he drove to a petrol station with two co-offenders, who started stealing items from the petrol station store, despite the Applicant’s driver’s licence having been cancelled on 20 May 2015 for failing to provide a drink driving education certificate. When he later attended the police station, police searched him and found him to be in possession of a stolen credit card (T11/88). On 16 January 2016, the Applicant also drove at a speed of 107 kilometres per hour in a 60-kilometre zone despite his licence having been cancelled at that time (T11/93). On 27 July 2017, the Applicant’s licence was suspended in relation to demerit points. However, on 8 September 2017, when police pulled his car over for a licence check, the Applicant stated that “[he] didn’t know [the license] was suspended” (T11/95). The Applicant was again pulled over by police when driving on 14 December 2017, despite his licence having been cancelled, and was found to have a blood alcohol reading of 0.270 grams per 210 litres of breath (T11/97).
With reference to the theft and stolen goods offences mentioned above, the sentencing remarks also show that on 10 January 2016, the Applicant and at least two co-offenders walked around a suburb breaking into cars and stealing money and personal items from cars. The Applicant and a co-offender were found hiding in a garden by police dogs, with the Applicant wearing black gloves when arrested (T11/89–90). The sentencing remarks also described another incident on 10 March 2017 where the Applicant, who was in the company of another male, smashed a car window with a brick to obtain a handbag from the front passenger seat and used the victim’s credit card to buy liquor. When interviewed by police, the Applicant said, “he was drunk and had no idea about the allegations put to him” and that “he had never used anyone else’s credit card” (T11/94–5).
On 5 June 2018, the Applicant pushed a shopping trolley into the window of a hotel, causing it to smash. When arrested by police the Applicant gave them a driver’s licence in another person’s name and continued to insist that his name was the name on the licence. Police realised that the Applicant had given them the wrong name after forensic services analysed the Applicant’s fingerprints and determined his true identity (T11/99–100). The sentencing remarks also describe other incidents, including one instance relating to the handling and receiving of stolen goods found in a vehicle that the Applicant was driving. The items found in the Applicant’s vehicle during a police search included an iPad, a camera, and two GPS systems, a baton and three pocketknives (T11/92).
On 22 June 2018, the Applicant was conveyed to the police station due to having outstanding whereabouts for bail. When he was searched, police located “a small quantity of [green vegetable matter] in the [Applicant’s] backpack believed to be cannabis” (T11/100).
Overall, the Applicant’s offences are broad ranging and include violent offences, weapons possession offences, offences involving the destruction of property, and other offences including theft and breaches of bail.
Seriousness of the crimes committed
The Applicant’s violent offences, particularly those that involve violence against women, are serious and risk the safety of the community. Victims can potentially suffer serious harms including injury, disablement or death as the result of violent offending.
The serious nature of violent offending and the harms that victims can suffer is highlighted in the sentencing remarks of 16 August 2018. With respect to the 31 offences for which the Applicant was being sentenced, his Honour stated (T11/103–4, 109, 112–13):
He is completely and utterly out of control. I’m dealing with a plethora of charges which include serious domestic violence assaults, burglaries, thefts. …
The overall combination of those adds up to one thing, even though he has got relatively minor priors. He is out of control … there’s repeated violence in this consolidation. … And his hitting of women is despicable. …
Whether he is substance affected or not, he’s a big fellow. I mean, he’s not some little pipsqueak. He looks like he is about 185 centimetres tall and he probably weighs about 85, 90 kilos. He’s big. He’s strong and he chucks his weight around. He gets himself grogged up, possibly drugged up because there’s some cannabis at least, and he hurts people and he smashes windows and he commits burglaries and he’s just way out of control, you know, he’s lawless. …
[H]is propensity to hit women is hugely concerning to me. … He is completely out of control. … the offending that pre-dates my involved [sic] with you in March last year and, more importantly, the offending that comes after that involvement is all serious. None of it is minor. The affray in the city is a serious offence. … Every time somebody gets punched there is a real risk that they receive a fatal injury. Any given punch at any time can kill. You are big. You are strong. Whether you intended it or not is irrelevant. You have the power just by punching people to kill them and hitting women, there isn’t a culture in the world that says it’s okay for men to hit women.
With respect to the recklessly cause injury offence, his Honour stated (T11/117):
you hit her [the victim] so hard that her eye all blew up and she had to go to hospital for treatment and you pursued her and even when police come, you continue to behave outrageously, completely and utterly out of control.
The comments of the sentencing Magistrate also illustrate the seriousness of offences involving driving, and particularly driving under the influence of alcohol. His Honour expressed concern about the high level of the Applicant’s blood alcohol reading of 0.27, being approximately five times the legal limit (T11/102 and T113). His Honour elaborated upon the serious harms that can result from drink driving, including the death of innocent members of the public (T11/116):
It’s a big reading, .27. I have seen bigger, but it’s more than five times the legal limit that somebody is supposed to have. I don’t know why you weren’t charged with driving under the influence, but you’re not. If you were, a gaol sentence would be required. If you had crashed and killed somebody with that blood alcohol reading, you would have been completely indefensible on a charge of culpable driving … It’s just luck that the coppers pulled you up, only God knows what might have happened if they hadn’t and you had no hope of properly controlling a car at that blood alcohol level. You may have thought you did, but you didn’t and that’s what’s wrong with that offending.
A lot of people tell me when they get caught drink driving, “Oh, I’m really sorry, Your Honour. I made a silly mistake,” and my reaction to that is always, “No, you didn’t. You committed a serious criminal offence that is hugely dangerous to the community. It wasn’t a silly mistake.”
The Tribunal acknowledges that the Applicant has committed some offences that are of a less serious nature, for example, “fail to answer bail” and “drunk in a public place” in 2016. However, the Applicant’s subsequent offending has become more frequent and serious, including weapons offences and offences involving violence. The Applicant’s misuse of alcohol (which is discussed further below) is also very concerning because there is a link between his alcohol use and his offending. For the reasons set out above the Applicant’s offences involving violence are very serious. Additionally, the Applicant’s driving offences cannot be considered as minor misdemeanours given the serious consequences that can result from drink driving.
Length of the sentence imposed
The Applicant did not receive sentences of imprisonment for his first two offences of “fail to answer bail” (convicted 4 March 2016) and “drunk in a public place” (convicted 11 August 2016), but rather was “convicted and discharged”.
The Applicant was convicted of six offences on 15 March 2017. It is unclear from his criminal history as to what the precise penalty was for these offences (see T11/82), but it appears that the Applicant was not sentenced to a custodial sentence of imprisonment until
16 August 2018.On 16 August 2018, the sentencing Magistrate described the Applicant’s offending as “an ongoing course of conduct, albeit over a significant length of time” (T11/118–19). His Honour sentenced the Applicant with respect to 31 offences and imposed an aggregate term of imprisonment of 15 months, with parole eligibility after eight months (T11/119).
Imposing a custodial sentence of imprisonment is often a sentence of last resort, particularly when an offender is of a young age. Indeed, this Tribunal in PNLB and Minister for Immigration and Border Protection [2018] AATA 162 stated that, “[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved”. The imposition of the 15-month term of imprisonment is illustrative of the volume and overall seriousness of the Applicant’s offending, particularly given that the Applicant was only 22 years of age at the time of sentencing.
Extent of the criminal history, period over which prior crimes took place, and criminal record as a whole
The Applicant was first convicted of “fail to answer bail” in 2016 when he was 20 years of age. He has committed around 39 offences over a relatively short period of approximately three years. His offences are broad ranging and include violent offences, weapons possession offences, offences involving the destruction of property, theft and breaches of bail. The Applicant has not just committed one or two, or even a handful of offences. Approximately 39 offences is an extensive criminal history for a 22 year old man to have accumulated. The Applicant can be described as a frequent offender.
Most of the Applicant’s criminal record is comprised of the 31 convictions, for which he was sentenced on 16 August 2018 in the Melbourne County Court. The Applicant’s representative, Mr Mayek, submitted that the Applicant’s risk of re-offending is low and that he is not a danger to the community because his offending history was “confined to a three (3) year period”. However, committing this number of offences over such a short period is of concern to the Tribunal, and it does not follow from Mr Mayek’s above statement that the offending would be isolated to a three-year period. Indeed, as noted above, the sentencing Magistrate described the offending as “an ongoing course of conduct, albeit over a significant length of time” (T11/118–19).
Mitigating or aggravating circumstances
The Applicant in his SFIC at page 7 submitted that he “had a difficult childhood and lived in refugee camps and his trials and tribulations should be understood within that context”. However, the Applicant did not file a witness statement and there is no other evidence addressing specific difficulties that he experienced during childhood.
Also, in a file note dated 19 August 2018 made by the Victorian Prison Service, it was noted that the Applicant “denies any childhood abuse or trauma issues - he states he comes from a good Christian family and came to Australia for a better life” (R2/99). Consequently, the Tribunal is unable to make a finding that the Applicant’s difficulties during childhood is a mitigating factor with respect to his offending because there is insufficient evidence on which to base such a finding.
Even if a finding could be made that the Applicant had a difficult childhood which contributed to his offending, it does not necessarily follow that the Applicant is not a danger to the Australian community. Whilst having a difficult childhood may help to explain or excuse subsequent offending, unless there is evidence of rehabilitation, unresolved and untreated childhood trauma may, depending on the circumstances, be a factor that increases the likelihood of future reoffending.
Prospects of rehabilitation, risk of re-offending and recidivism and the likelihood of relapsing into crime
When sentencing the Applicant on 16 August 2018, the sentencing Magistrate noted the Applicant’s problem with alcohol (T11/113):
For you to get a reading of .270 means you have a real problem with alcohol. You are … an alcoholic and I suspect a lot of this offending, alcohol has been involved.
The sentencing Magistrate further stated that the Applicant needed to undertake treatment courses (T11/120):
… you need to make sure that you stay out of trouble in gaol, that you stay off the drugs and that you start to do something about doing some courses that may be available to you. You need to understand if you go back to these kinds of behaviours when you get out you will blow the parole and they will call you back in.
Overall, the sentencing Magistrate did not appear optimistic about the Applicant’s prospects of rehabilitation. His Honour stated (T11/119):
I am sentencing you to be imprisoned for a period of 15 months and ordering that you spend eight months before being considered eligible for parole which gives you seven months on parole. If you can navigate the seven months then maybe things will be all right. I don’t think you will. I think you will go back to idiot mates and rob and you will have the parole pulled and somebody like me will give you even more, but I hope I’m wrong.
A file note made by the Victorian Prison Service on 21 September 2018 indicates that the Applicant was formally assessed as being a high risk of offending, specifically: “[a]n LS/RNR has identified [the Applicant’s] risk of reoffending as High” (R2/101). The Tribunal does not have a copy of the Adult Parole Board of Victoria’s decision, but the Applicant’s risk of reoffending was likely a contributing factor to the Applicant being denied parole on 2 May 2019 (R2/111).
The file note dated 21 September 2018 further describes the Applicant’s problem with excessive alcohol consumption and its likely link to his offending behaviour (R2/101):
Alcohol/Drug problem – High: [the Applicant] states he smoked Cannabis sometimes however his big issue is alcohol - he states that he will drink anything at all he has no preference and just does not stop. He attributes his offending behaviour to his uncontrolled consumption of alcohol. [The Applicant] has been encouraged to participate in assessments as scheduled and programs as identified. He has also been advised to consider attending AA [Alcoholics Anonymous] for support.
At the hearing the Applicant’s evidence was that he was drunk when he punched his girlfriend in the face. He stated, “I was drunk at the time” and “I was drunk and I didn’t know what I was doing” (transcript/49).
It appears that the Applicant may have attended some AA meetings in prison, but that he stopped attending these meetings when he was denied parole. Relevant file notes made by the Victorian Prison Service state (R2/111–13):
29/05/2019:… [the Applicant’s] third goal was to attend AA meetings, however he says that due to being knocked back for parole he has stopped going to these meetings. I challenged [the Applicant] on this stating that regardless of whether he was able to get parole, he had acknowledged previously that the AA meetings were helpful. He nodded but made no further comment. …
04/06/2019:… [The Applicant’s] third and final goal is to attend AA meetings regularly, however when I approached the subject through our conversation he did not want to elaborate on this, only to say he wasn’t interested as he is “leaving soon”. I challenged [the Applicant] on this dismissive attitude to which he had no reply. I did tell [the Applicant] that attending these AA meetings is listed as one of his goals and reminded him of the importance to commit himself to working through these, however I felt he was not genuinely interested in my advice.
12/07/2019:… [the Applicant’s] third goal is to attend AA meetings regularly, however this is a goal that [the Applicant] struggles with. When this topic is raised, [the Applicant] is dismissive as he sees no need to attend due to his short sentence. I challenged [the Applicant] on this attitude but his lack of concern suggests he is not in the right headspace to confront his offending behaviour.
04/08/2019:… [The Applicant’s] third goal is to attend AA meetings regularly, however this is a goal that [the Applicant] struggles with. When this topic is raised, [the Applicant] is dismissive as he sees no need to attend due to his short sentence. I reminded [the Applicant] that when we had discussed his goals a few months ago he was very keen to address his offending behaviours and remove the negative influences in his life. I reminded him that AA was there to support him and make transitioning after his deportation easier. [The Applicant] did not seem to want to hear this.
At the hearing, the Applicant explained that he stopped attending AA meetings because “[i]t’s because - I wanted parole. … I just got very - I got depressed, and I just stayed in the room, and I stopped going to the meetings. I thought I was going to home” (transcript/49).
Additionally, the Applicant has not undertaken any counselling or other treatment courses for his alcohol issues (transcript/29).
At the hearing the Applicant also stated his intention not to consume alcohol in the future, and specifically that “all that I’ve done is because of alcohol. That’s why - while I’m in here, I don’t - I don’t want anything to do with alcohol” (transcript/49).
At the hearing, the Applicant also gave evidence that he had not consumed any alcohol in immigration detention (transcript/41). The Tribunal finds that there is no evidence of the Applicant consuming any alcohol whilst in immigration detention. A period of abstinence in immigration detention may assist the Applicant to continue to abstain from alcohol use if he is released into the community. The Tribunal notes, however, that immigration detention is a more controlled environment than in the community where it is easier to obtain alcohol.
Nevertheless, the Tribunal remains concerned that the Applicant’s alcohol issues have not been addressed adequately, given the minimal treatment he has undertaken for alcohol abuse. This is concerning due to the link between alcohol and the Applicant’s offending. Whilst the Applicant’s stated intention is not to consume alcohol, that intention has not been tested in the community. Until his treatment needs are met, the Tribunal is concerned that the Applicant may consume alcohol again if he is released into the community which may elevate the likelihood of his reoffending and being a danger to the community.
The Respondent also noted that the Applicant had been involved in two incidents in immigration detention. These incidents were described in the protection visa decision record as follows (T13/189–90):
17 October 2019 at Melbourne Immigration Transit Accommodation (MITA) – the applicant pushed another detainee in the chest as he entered the room and gave him a stare. The other detainee did not feel safe after the incident and requested to be relocated to another compound.
15 November 2019 at MITA – the applicant damaged a computer by repeatedly smashing it on the floor and then assaulted another detainee by punching him in the chest area. The applicant resisted members of the response team who intervened to stop him hurting others.
When asked about the 17 October 2019 incident, the Applicant’s evidence was as follows (transcript/40):
MR MAYEK:What were the circumstances of the incident of 17 October 2019 at Melbourne Immigration Transit Accommodation?
APPLICANT: Is that the first incident or the second incident?
MR MAYEK:Yes, where it's indicated you pushed a detainee in the chest, as he entered the room, and you gave him a stare?
APPLICANT: I don't know - he pushed me as well, so as I push him back, as he stared at me I stared at him, but the officer did not - I don't know, they wrote it different; like, they wrote the story different.
With respect to the 15 November 2019 incident, the Applicant’s evidence was (transcript/40–1):
MR MAYEK:Moving on, SLGS, it's further stated on 15 November 2019 at [MITA], you damaged a computer by repeatedly smashing it on the floor. Then you assaulted another detainee by punching him in the chest area. You resisted members of the response team, who intervened to stop you from hurting others. What can you say to that?
APPLICANT: I would say it's not true. That's not how it happened. I did not assault him.
TRIBUNAL: Are you able to tell us what happened, SLGS?
APPLICANT: Yes. As I was sitting on the computer, and the other detainee keeps going back to his room, he keeps coming back again. As he told me, as I was watching a movie, he told me he wants to use the computer. I told him, ‘When I finish my movie, I will let you use it.’ As he keeps going to his room, he keeps coming back, he keeps (indistinct) earplug, he threw it at the keyboard as I was watching my movie - threw it at the keyboard, and I moved it, and then he went to his room and come back, got a jumper, threw it at the keyboard. Then from there, I just - instead of fighting with him, I just broke his computer. As I was breaking the computer, and then after that as I was going - as I was going back to him, the officers pulled me back. I did not - I didn’t even reach him - I didn’t, like, - it wasn’t an assault, like, the office[r] pulled me back - pulled me - that’s when they pulled me on the ground. I didn’t - I didn’t hit him, I did not touch him, I didn’t even get to him.
When asked about this incident in cross-examination, the Applicant admitted breaking the computer and to attempting to assault the other detainee, but that he was pulled back by officers before he could do so (transcript/45–6):
MR BURGESS: SLGS, you said before in relation to the incident that - the second incident - in immigration detention - that it was in relation to an argument over your use of the computer. Is that right?
APPLICANT: Yes, it was - it was - I don’t know - that dude, he - I don’t know, he had problems. Even the officers told me that this guy is - he’s always starting trouble. And then - I was trying to stay away from him. I warned him. I warned him three times. ‘I want to finish with the computer, I will let you use it.’ And he continues throwing his stuff on the keyboard. And instead of assaulting him, I just broke the computer, you know. I did not - I didn’t hit him in the chest.
MR BURGESS: Well, when you said you just broke the computer - you smashed the computer on the ground?
APPLICANT: Yes. That - yes, I did - I’ll say that’s true.
MR BURGESS: Yes. And you said before that you didn’t punch him. But then you went on to say, ‘I didn’t even reach him, the officer pulled me back. He grabbed me by the back of the t-shirt, I didn’t even get to him.’ Do you accept - - -?
APPLICANT: You know, as I - as I was going - they pulled me back, I did not assault him, that’s - - -
MR BURGESS: Yes. You were trying to assault him, though, weren’t you? You just didn’t get to him?
APPLICANT: Yes, but I did not hit him on the chest, like what they say - no.
MR BURGESS: But you were chasing after (indistinct) hit him, weren’t you?
APPLICANT: No, he was coming to me as well. (Indistinct) - - -
MR BURGESS: Well, you said before, ‘I didn’t even reach him. The officer pulled me back. As I was going for him, the officer pulled me back by the t-shirt. I didn’t even get to him. I was pulled back, I didn’t even get to him,’ is what you said. So, you were going for him, weren’t you?
APPLICANT: Yes, but that’s the thing - they said I hit him in the chest. How can I hit him if I got pulled back? (Indistinct) pull me back. And then they put me on the ground, (indistinct).
These incidents do raise some concerns in the Tribunal’s opinion about the Applicant’s consequential thinking and his ability to control his anger. If the Applicant’s version of events is accepted, the Applicant pushed another detainee after he was pushed himself. He also destroyed property by smashing a computer in anger and unsuccessfully attempted to assault another detainee after being pulled back by guards. Even if the other detainees were agitating the Applicant, the way the Applicant reacted is nevertheless a cause for concern.
It was also submitted on behalf of the Applicant that he had disassociated from negative peers which would be a protective factor. Although the Applicant’s evidence at the hearing was that he would no longer have anything to do with his friends, the Applicant sought to deflect responsibility onto them rather than taking responsibility for his own offending (transcript/49):
MR BURGESS: And in relation to - you were asked how you felt about your offences, and you said it was just bad friends, and now you’ve cut them out. That was your evidence?
APPLICANT: Yes, I’ve cut them - like, I don’t - I was hanging around with bad mate - bad mates - they were making me doing bad decisions that I didn’t want to do.
MR BURGESS: SLGS, your friends didn’t make you punch your girlfriends in the face, did they?
APPLICANT: (Indistinct) I was - I was drunk at that time.
Whether the Applicant can disassociate from negative peers if released into the community remains to be seen. If he is able do so, it may assist him to not fall back into the habits of his old lifestyle, such as drinking and committing theft and property offences with his friends as co-offenders.
The Applicant stated that he regretted his offending. His evidence indicated that he appreciated the effect that his offending has had on his family, and he was affected by his separation from them. It also appears that being in prison and immigration detention has had a salutary effect on the Applicant as the following exchange illustrates (transcript/44):
TRIBUNAL:Well, perhaps if we can ask you SLGS, you’ve committed a number of offences, how do you feel about your offences?
APPLICANT: Well, my offences - it’s just, you know, I never - I never been so far away from my family for that long. And as I was young I was committing crimes, thinking that I’m going to get away with it, as I was getting away with it, I keep doing it. But as I was growing up and then now when I got sentenced I went back to the cell, I was crying. I knew that I’m going to be far away from my family. But - - -
TRIBUNAL: Okay, thank you. And is there - sorry, please go ahead?
APPLICANT: Yes, and as I - as I’ve been in here, I’ve been - it’s just bad friends, you know. Hanging around bad friends, you know. Just hanging around with bad friends. Now that I’ve - I’ve cut all my friends out, I don’t speak to nobody, only my family. Because now that I’m in here, the people that were out there was just - I was defending them. Now, they’re not here for me, only my family. Now I realise how important my family are, and my friends. Now, they’re not even here for me - they’re not even asking why (indistinct). Now, I just - I just regret all the things that I’ve done. Now, if I get another chance, I will change it, like - - -
TRIBUNAL: Okay, thank you - - -?
APPLICANT: It’s just I’ve never been that far away from my family before.
TRIBUNAL:And how can I be satisfied that you won’t commit any more offences if you’re released into the community?
APPLICANT: Because this place - I’ve seen - I’ve seen a lot of stuff in this place I don’t want to see again. And I’ve put family through a lot. And my mum, she’s single. My dad - they’re not together. And (indistinct) she calls me, she cries, you know. She says she can’t pay the bills. Your sister here, you know, she’s crying. And that’s just - it’s making me, like - making me regret everything. But - yes.
TRIBUNAL: All right, thank you, SLGS - - -?
APPLICANT: I just don’t want to - - -
TRIBUNAL: Sorry, did you have anything further to add?
APPLICANT: I just don’t want to go back to those friends again. I don’t want anything to do with them. I just want to be with my family, that’s it. I don’t want - it was just bad friends, and my whole (indistinct) that I’ve been in here, I haven’t been getting involved in alcohol. I’ve been staying out of trouble for a while now. I’ve realised that this place, and getting into trouble, it doesn’t - you don’t go nowhere.
The Tribunal accepts that the salutary effect of the Applicant’s time in prison and immigration detention, his separation from his family, and the prospect of permanent separation from his family if he is deported, may deter the Applicant from reoffending if he is released into the Australian community.
The Tribunal notes that the Applicant has support from his mother and sisters who are willing to provide him with guidance and support (A1/7). He also has community support, as indicated by two letters of support from the Reverend of his mother’s Church (A1/2–3) and two letters from two other community associations offering him support and in one instance a rehabilitation program (A1/4–5 and 8). There is a support letter from the Australian African Sports Association in the Applicant’s materials. The CEO of this association states that the association will provide the Applicant with a mentor, register him to learn and play a sport and to gain assistance to find employment. However, the letter is in response to an enquiry from Mr Mayek, the Applicant’s representative (A1/1). Thus, the Tribunal is uncertain as to the extent of the Applicant’s desire to engage in this program, or whether the enquiry was made by Mr Mayek in anticipation of these proceedings. Nevertheless, there is a range of community support for the Applicant to access if he wishes to do so upon release into the community. If the Applicant is released into the Australian community and does access these services, they are likely to assist him with his re-integration and rehabilitation.
Evaluating whether the Applicant is a danger to the Australian community by applying the factors in WKCG
Section 36(1C)(b) of the Act is a disentitling provision. This section creates a criterion for a protection visa that the Applicant is not a person whom the Minister (and in this case the Tribunal) considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. A finding that an applicant is a danger to the Australian community will mean that they do not meet the criterion for a protection visa, even if (as is the case in this application) the applicant is found to be owed protection obligations and that there is a real risk of the applicant suffering significant harm if returned to their country of origin.
As noted above at paragraphs [31]–[39], Deputy President Tamberlin and Logan J expressed differing approaches with regard to the meaning of “danger” under s 36(1C)(b) of the Act. Where Logan J departed from Deputy President Tamberlin is in the view that there needs to be a “present and serious risk” for there to be a “danger”. Nevertheless, as noted at paragraphs [38]–[39] above, the comments of Deputy President Tamberlin and Logan J are largely consistent and can be reconciled.
However, in the Applicant’s circumstances there is no need to reconcile any differences in the approaches. This is because regardless of the approach adopted, the Tribunal finds that the Applicant would be a danger to the Australian community, even if the Tribunal were to adopt the more restrictive approach of Logan J.
That is, regardless of which interpretation is applied, after an evaluation of the factors in WKCG there are reasonable grounds to conclude that the Applicant is a danger to the Australian community. That is, based on an evaluation of the factors in WKCG, the Tribunal finds that should the Applicant be released into the Australian community, there is a “real or significant risk or possibility of harm to one or [more] members of the Australian community”.
The specific factors identified in WKCG that were indicative of the Applicant being a danger to the Australian community were discussed in detail above, but in summary included the following.
(a)The broad ranging nature and seriousness of some of the Applicant’s offences, which included violence against former girlfriends, fighting in public and weapons possession offences.
(b)The aggregate sentence of imprisonment imposed on 16 August 2018. The imposition of a term of imprisonment is usually a sentence of last resort, especially given the Applicant was only 22 years of age at the time he was sentenced.
(c)The extent of the Applicant’s offending which comprised 39 offences over an approximately three-year period, with the sentencing Magistrate describing the offending as a course of conduct and the Applicant as being “out of control”.
(d)There is a direct relationship between the Applicant’s alcohol abuse issues and his offending, and yet he has not undertaken any intensive treatment for alcohol abuse and ceased attending Alcoholics Anonymous when he was denied parole.
(e)The Applicant’s risk of reoffending and recidivism and the likelihood of relapsing into crime, which the Tribunal finds is likely to be high, taking into account the comments of the sentencing Magistrate, the assessment by prison treatment assessors that the Applicant was a high risk, and the two incidents in immigration detention that tend to suggest that the Applicant has issues with anger management and consequential thinking.
The factors weighing in the Applicant’s favour included:
(a)his young age;
(b)his regret and appreciation of the impact of his time in prison and immigration detention on his family, and his desire not to be separated from his family;
(c)the salutary impact of prison and immigration detention;
(d)his intention not to consume alcohol and to disassociate from negative friends;
(e)his limited attendance at Alcoholics Anonymous meetings up until his parole was denied; and
(f)support from his mother and other family members, as well as community organisations, who have offered to assist with his rehabilitation in the community.
However, these factors are not enough to outweigh the Tribunal’s finding that the Applicant is a danger to the Australian community.
CONCLUSION
For the reasons outlined above, the Tribunal considers that the Applicant does not satisfy the criterion in s 36(1C)(b) of the Act because the Applicant:
(a)has been convicted by a final judgment of a particularly serious crime; and
(b)is a danger to the Australian community.
DECISION
The Reviewable Decision of the delegate of the Respondent dated 13 August 2020 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 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
...[Sgd]...............................................................
Associate
Dated: 27 May 2021
Date of hearing: 21 April 2021
Representative for the Applicant: Mr M Mayek, Mayek Legal
Representative for the Respondent: Mr A Burgess, Sparke Helmore Lawyers
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