SQDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2980
•12 August 2021
SQDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2980 (12 August 2021)
Division: GENERAL DIVISION
File Number: 2020/4983
Re: SQDD
APPLICANT
And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal: Deputy President Boyle
Date: 12 August 2021
Place: Perth
The decision of the delegate of the Respondent made on 13 August 2020 to refuse the Applicant a Protection (class XA, subclass 866) visa under s 65 of the Migration Act 1958 (Cth) is affirmed.
...[SGD].....................................................................
Deputy President Boyle
Catchwords
MIGRATION – s 36(1C) of the Migration Act – refusal to grant a protection visa – Australia owes the Applicant protection obligations – Applicant concedes that he has been convicted by final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – Applicant sentenced to six years and 10 months’ imprisonment for grievous bodily harm – violent offending – alcohol-related offending – Applicant an unacceptable risk of reoffending – reviewable decision affirmed
Legislation
Administrative Appeals Tribunal Act – s 37
Migration Act 1958 (Cth) – ss 5, 5M, 36(1C), 36(1C)(b), 65, 499, 500(1)(c)(i), 501(3A)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Cases
BHYK v Minister for Immigration and Citizenship [2010] AATA 662
Broad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4563
DOB18 v Minister for Home Affairs (2019) 269 FCR 636; [2019] FCAFC 63
HSCK and Minister for Home Affairs [2019] AATA 4392
HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1967
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; [2019] FCA 1591
MHCZ and Minister for Home Affairs [2019] AATA 4259
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
RWDX and Minister for Home Affairs [2019] AATA 123
Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40; (2012) 200 FCR 174
TDPG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 503
Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148
WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434; [2009] AATA 512
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) – arts 33, 33(2)
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) – sch 5, pt 2, item 9
Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017) – principles, pt 2
The Refugee Law Guidelines, Department of Home Affairs, 1 July 2017 – ch 14
REASONS FOR DECISION
Deputy President Boyle
12 August 2021
the application
This is an application for the review of a decision of a delegate of the Respondent made on 13 August 2020 to refuse the Applicant a Protection (class XA, subclass 866) visa (the protection visa) under s 65 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 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.
THE ISSUES
The Applicant concedes that he has been convicted by a final judgment of a particularly serious crime within the meaning of s 5M of the Act. I find that to be the case in any event. Accordingly, the only issue for determination is whether the Applicant is a danger to the Australian community for the purposes of s 36(1C)(b) of the Act. The Applicant agrees that that is the only issue for determination.
BACKGROUND
The Applicant is a 38-year-old citizen of South Sudan. He arrived in Australia on 17 October 2008 as the holder of a class XB subclass 202 Global Special Humanitarian visa. The Applicant was 26 years old at the time of arrival in Australia and he has remained in Australia ever since.
The Applicant’s offending started around three years after he arrived in Australia. In the period from 2011 to 2015, the Applicant committed 12 offences, six of which involved violence or the threat of violence. The Applicant’s criminal history as disclosed by the Criminal Intelligence Commission report is as follows:
Court
Result Date
Offence
Offence Date
Result
Armadale Magistrates Court
4 December 2015
Assault public officer
4 February 2015
6 months’ imprisonment (concurrent from 4 December 2015)
Armadale Magistrates Court
31 July 2015
Assault public officer
4 February 2015
$3,000 fine
Perth District Court of Western Australia
9 December 2014
With intent to do grievous bodily harm does grievous bodily harm to another
7 October 2013
6 years and 10 months’ imprisonment (concurrent from 7 October 2013)
Perth Magistrates Court
7 January 2014
Disorderly behaviour in public place
21 August 2013
$750 fine
Perth Magistrates Court
20 September 2013
Fail to obey order given by an officer
27 July 2013
$300 fine
Perth Magistrates Court
20 September 2013
Disorderly behaviour in public
27 July 2013
$300 fine
Perth Magistrates Court
17 September 2013
Disorderly behaviour in public
25 August 2013
1 adult conditional release order from 17 September 2013; $500 undertaking
Midland Magistrates Court
4 June 2013
Threats to injure, endanger or harm any person
1 May 2013
$600 fine
Perth Magistrates Court
27 September 2012
Breach of violence restraining order
30 August 2012
$500 fine
Perth Magistrates Court
30 April 2012
Wilfully and unlawfully destroy or damage property
10 October 2011
$200 fine
Perth Magistrates Court
7 September 2011
Assault occasioning bodily harm
20 May 2011
$1,500 fine
On 9 December 2014 the Applicant was convicted of “With Intent to do Grievous Bodily Harm, Does Grievous Bodily Harm to Another” (the GBH offence) for which he received a sentence of imprisonment of six years and 10 months.
On 25 July 2018 the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Act.
The Applicant requested revocation of the mandatory visa cancellation. On 20 May 2019 the Minister decided to not revoke the cancellation.
The Applicant sought judicial review of the decision not to revoke the cancellation of his visa in the Federal Court. On 19 March 2020 Jackson J made consent orders quashing the Minister’s decision not to revoke the cancellation of the visa and requiring the Minister to determine the Applicant’s request for revocation.
On 18 October 2019 the Applicant applied for the protection visa. On 13 August 2020 the application for the protection visa was refused by a delegate of the Respondent (see [1] above).
In refusing the protection visa, the delegate accepted that the Applicant met the refugee criteria and that there were substantial reasons for believing that, as a necessary and foreseeable consequence of the Applicant being returned to South Sudan, there is a real risk that the Applicant will suffer significant harm. The delegate found that the Applicant was ineligible for the grant of a protection visa because he had been convicted by a final judgment of a particularly serious crime and is a danger to the Australian community.
By application lodged in the Tribunal on 15 August 2020 the Applicant sought review of the delegate’s decision.
LEGISLATIVE FRAMEWORK
Under s 500(1)(c)(i) of the Act, the General Division of the Tribunal has jurisdiction to review a decision to refuse to grant a protection visa relying on s 36(1C) of the Act. I am satisfied that this application for review was made validly and within the prescribed time.
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) and was intended to codify art 33(2) of the 1951 Convention Relating to the Status of Refugees (Refugees Convention).
Article 33 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.
(Original emphasis.)
Section 36(1C) of the Act provides:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(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:
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) 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.
(Original emphasis.)
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. This is “Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)” (Direction 75). Direction 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 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 at ch 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.
Under the heading “Danger to the Community”, the Refugee Law Guidelines provide:
Whether a person constitutes a danger to the community of Australia involves more than a reference to the crime committed by that person and should be assessed on a case-by-case basis.
In WKCG and Minister for Immigration and Citizenship, Deputy President Tamberlin of the Administrative Appeals Tribunal established what has become known as the WKCG test for assessing whether a person constitutes a danger to the community of Australia. The WKCG test was adopted by both parties in BHYK and Minister for Immigration and Citizenship and involves a decision maker considering:
the seriousness and nature of the crimes committed
the length of the sentence imposed
any mitigating or aggravating circumstances
the criminal record in totality - including the extent and nature of any prior convictions and the period over which they took place
the risk of re-offending and recidivism
the likelihood of relapsing into crime
any prospects of rehabilitation.
Furthermore:
[when] 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.
(Footnotes omitted.)
THE HEARING
The application was heard on 17 May 2021. The Applicant was represented by Mr H Glenister and the Respondent was represented by Mr A Gerrard. The Applicant, Dr P S Watts, adjunct associate professor in clinical psychology and Dr G Wojnarowska, forensic consultant psychiatrist gave evidence at the hearing. The following documents were admitted into evidence:
(a) Applicant’s SFIC dated 14 February 2021 (A1);
(b) Report of Dr Phil Watts dated 2 February 2021 (A2);
(c) Respondent’s Statement of Facts, Issues and Contentions (R1) (Respondent’s SFIC);
(d) Report and letter of instruction of Dr Gosia Wojnarowska dated 29 April 2021 (R2);
(e) T documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (R3); and
(f) Bundle of documents produced under summons from the Commissioner of WA Police (R4).
the parties’ cases
The Applicant
The Applicant’s SFIC states the Applicant’s case as follows:
(a) In the context of s 36(1C)(b) of the Act, danger means a present and serious risk.
(b) In assessing whether the Applicant poses a risk to the community the Tribunal should have regard to the factors identified in WKCG v Minister for Immigration and Citizenship (WKCG) [25]–[27] which are:
(i) The seriousness and nature of the crimes committed which necessarily includes:
A. the length of the sentences imposed; and
B. whether there are any mitigating or aggravating circumstances; and
C. the Applicant’s criminal history.
(ii) The risk of re-offending and recidivism and the likelihood of relapsing into crime.
Nature and seriousness of the Applicant’s offences
(c) The Applicant concedes that the GBH offence was very serious, as was reflected by the term of imprisonment imposed on him. However, it is relevant that there was a significant degree of provocation from the victim of that offence.
(d) The Applicant accepted responsibility for the GBH offence by assisting police and pleading guilty. The sentencing judge was also satisfied that the Applicant was remorseful for what he had done, he had insight into his offending, he was motivated to rehabilitate himself, and that he had the potential to live a law-abiding and useful life.
(e) The other offences committed by the Applicant were clearly less serious.
Risk of reoffending
(f) The expert evidence of Dr Phil Watts is the best evidence before the Tribunal.
(g) Dr Watts performed a personality assessment inventory on the Applicant, concluding that his profile “is suggestive of someone who has a combination of anxiety, depression and trauma, and drinks to self-regulate, which then increases the risk of reactive acting out”.
(h) Dr Watts noted that the Applicant had different cultural beliefs when it came to violence and did not see himself as a bad person as his offences had been retaliatory in nature. The relatively short period that the Applicant had been in Australia would not have been sufficient for the Applicant to be encultured into Australian beliefs and laws around violence.
(i) Dr Watts opined that if the Applicant ceased drinking his risk of reoffending would be negligible. Dr Watts considered that the Applicant has posttraumatic stress disorder (PTSD) and that this contributed to him overreacting in circumstances of perceived threat.
(j) Dr Watts noted that the Applicant had positive attributes such as his authorship of two books and his contributions to the South Sudanese community.
(k) Dr Watts concluded that the Applicant posed no risk of offending against the general community but, on the basis of his history, does pose a risk against individuals in retaliation situations. However, Dr Watts opined that his completion of rehabilitation courses has helped shift his views and lowered the risk of retaliatory offending. Dr Watts concluded that the Applicant was a minimal risk of reoffending.
(l) The Applicant was also granted parole. In making parole decisions, the Prisoner’s Review Board (PRB) gives paramount consideration to the safety of the community. The PRB concluded that the Applicant represented an acceptable risk to the community and approved his release on parole. The PRB’s reasons included that the Applicant had successfully completed violent offending and addictions rehabilitation courses with reported gains, had notably improved prison conduct and the salutary impact of his first term of imprisonment.
(m) The Applicant successfully completed:
(i) a 100-hour addiction program which included course content dealing with alcohol, preventing relapse and recidivism, and approaches to self-improvement and change; and
(ii) a 316-hour violent offending course which included course content dealing with interpersonal skills and decision-making, anger management, relapse prevention, and violent and aggressive behaviour cycles.
(n) The Applicant points to the following protective factors against the Applicant re-offending:
(i) The only family the Applicant has is his mother who is in Australia. She is supportive of the Applicant and the Applicant is motivated to remain in Australia with her. He understands that if he were to be removed from Australia, it is very likely that he will never see his mother again, especially given her ill-health.
(ii) If released into the community, the Applicant will have the benefit of stable accommodation as he will live with his mother.
(iii) He also enjoys an association with the South Sudanese community and several members of his extended family, all of whom will support his reintegration into the community.
(iv) The Applicant is now faced with the real prospect of being removed from Australia which, consistent with the findings made by the delegate, is a constructive death sentence. Even if this is overstated, he will be at the very least deprived of an ability to lead a useful life, permanently separated from his mother in Australia and at risk of serious or significant harm.
(v) The Applicant has developed insight into the causes of his offending. He has identified them and dealt with his main issue, alcohol, by resolving to abstain from it.
(vi) The Applicant has been productive in prison and detention, completing 16 educational courses and writing two books. He will be well-placed to re-enter the workforce and engage in higher education upon his release into the community.
(vii) The salutary impact of the Applicant’s first term of imprisonment can also be expected to reduce the risk of his reoffending.
(o) Since, at least, 1 April 2016, the Applicant has been a model prisoner and detainee. Given his past offending was generally against known persons when disputes got out of hand, the controlled environment of the prison and the detention centre cannot provide a full answer as to why he has not reoffended or engaged in other serious conduct. Indeed his 10 prison charges establish as much. Given it was shortly after 1 April 2016 that the Applicant completed his rehabilitation courses, it is likely that the Applicant’s good conduct is referable to a real behavioural shift in the Applicant inspired by his rehabilitation.
The Respondent
The Respondent’s SFIC stated the Respondent’s case as follows:
(a) Considering whether or not the Applicant poses a danger to the Australian community does not involve the exercise of a discretionary power (unlike the power provided for under s 501). If the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision.
(b) The exercise does not involve that balancing of the danger against the possible harm to the Applicant if he were to be returned to South Sudan.
(c) Rehabilitation is never certain.
(d) In BHYK v Minister for Immigration and Citizenship, (BHYK) Deputy President Handley stated (at [35]) that the task for the Tribunal is to:
[D]etermine 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.
(e) The question is whether the Applicant is a “danger to the Australian community”. It is a question of fact and degree.
(f) The Applicant must be shown to be presently and into the indefinite future a risk and that the risk must be serious.
(g) The following matters demonstrate that the Applicant is a danger to the community:
(i) The Applicant’s index offence involved significant violence. Once on the ground, the Applicant sat on his victim and punched him repeatedly to the head while he was semiconscious. He only stopped when other people intervened. The victim suffered extremely serious injuries.
(ii) This is not the Applicant’s only conviction for violent offending. The Applicant has also received two convictions for “Assault Public Officer” in 2015, “Threats to Injure”, “Endanger or Harm Any Person” in 2013, “Breach of Violence Restraining Order” in 2012 and “Assault Occasioning Bodily Harm” in 2011.
(iii) The Applicant has a reasonably significant criminal record which commenced only three years after his arrival in Australia and persisted over a four-year period comprising not only the violent offences referred to above but also convictions for disorderly behaviour, failure to obey an order given by an officer and wilfully and unlawfully destroying or damaging property. It cannot be said that the Applicant’s most recent offences constitute an aberration and there is a pattern of escalating seriousness.
(iv) The sentence of nearly seven years clearly marks the gravity with which the Court viewed the offending.
(v) Whilst the Applicant has claimed to be remorseful of his actions and offending, it is reasonably clear from his representations to the Department of Home Affairs that he feels that his victims also should be apportioned part of the blame and his conduct was in self-defence or otherwise justified on cultural grounds.
(vi) There is a record of abusive/aggressive behaviour taking place in August 2018 whilst the Applicant was in detention.
(vii) Dr Wojnarowska assesses the Applicant to be a moderate risk of reoffending. His risk could be managed if he was subject to a supervision order in the community relating to his alcohol consumption. Dr Wojnarowska’s report should be preferred as it is based on an appropriate risk assessment tool which takes into account dynamic risk factors, future protective factors and future management problems in formulating an assessment of risk.
(h) The Applicant’s criminal record includes a history of significant violence which culminated in horrific life-altering injuries to his victim. He has a long history of alcohol abuse, homelessness and undoubtedly has underlying psychological issues arising from a traumatic history as a child soldier. There is no objective evidence that the Applicant has addressed any of his underlying psychological issues. He has recently been assessed by a psychiatrist as constituting a moderate risk of future violence with a high chance that such violence could escalate to serious or life-threatening violence.
CONSIDERATION
The Applicant did not provide a separate statement for these proceedings. There are, however, numerous letters, emails and other documents written by the Applicant included in the T documents. Many of these documents were prepared for court proceedings, the application for parole or the various previous dealings that the Applicant has had with various government agencies, both State and Federal. As a result, these documents address a range of issues, some of which may have been relevant to those previous dealings, but which are not relevant to the issue to be determined by me, namely, whether the Applicant is a danger to the Australian community for the purposes of s 36(1C)(b) of the Act. Much of the material provided by the Applicant to the Department, as you would expect, dealt with his status as a refugee, the conditions in South Sudan and his fear of harm and consequences to himself and others if he were to be returned to South Sudan. The same comment applies to many of the letters and statements of support provided by others which are also included in the T documents. Insofar as those various letters, statements, submissions are relevant to the issue that I have to determine, I have taken them into account.
As the Respondent alluded to in his submissions (see [26(e)] above), there are two leading and potentially conflicting authorities on the interpretation of s 36(1C)(b) of the Act, namely WKCG and DOB18. Deputy President Tamberlin QC’s statements in WKCG were, and are, often cited as the preferred statement of the meaning of “danger to the Australian community”. Deputy President Tamberlin QC said in WKCG:
[25] The question of 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 Article 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.
...
[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.)
Until the judgment in DOB18 the legal position was reasonably clear. As Logan J noted at [76] in DOB18:
In Australia, an influential case in relation to the subject of “danger” as used in Art 33(2) of the Refugee Convention and now in s 36(1C) of the Act has proved to be the Administrative Appeals Tribunal case, WKCG...
As his Honour noted, various aspects of Deputy President Tamberlin QC’s approach in WKCG have been followed in subsequent cases. At [77] of his judgment, Logan J noted that:
SZOQQ was determined by the Administrative Appeals Tribunal on the basis, promoted by the parties, that WKCG was correctly decided, as it was before the Full Court. But the Full Court expressly left open the correctness of WKCG.
At [78] Logan J observed that:
... it be accepted that considerations to which the Deputy President adverts at [26] are pertinent. In EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536 (EWG17), Collier J referred to WKCG with apparent approval but her Honour’s approval (at [52]) expressly related to the proposition (found in WKCG at [25]), that “danger” must be determined in the circumstances of a given case.
(Original emphasis.)
At [80] Logan J noted:
My own further researches have disclosed that, also last year, WKCG was additionally referred to in this Court by Charlesworth J in AFY18 v Minister for Home Affairs [2018] FCA 1566 and by Siopis J in Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27. In neither case was there any need to consider the correctness of all that was said in WKCG about “danger”.
As alluded to by Logan J, the Tribunal has on numerous occasions adopted the approach taken by Deputy President Tamberlin QC in WKCG. I note that that approach is also adopted in the Refugee Law Guidelines (see [23] above). More recently I followed that approach in TDPG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 503 (TDPG).
As I noted in TDPG, I read Logan J’s judgment as saying that the particular aspect of Deputy President Tamberlin QC’s decision with which his Honour had an issue, is the Deputy President’s test for “danger” as set out in [31] of his decision, namely that “... it will be sufficient if there is a real or significant risk or possibility of harm ... It is not necessary to establish that there is a probability of a real and immediate danger of present harm”. (Original emphasis.)
Logan J’s view at [83] and [85] of his judgment was that:
83 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 [sic] just “risk”.
...
85 Within the Act, s 5H(2) in the definition of “refugee” can be seen to be responsive to Art 1F in the same way that s 36(1C) can be seen to be responsive to Art 33(2). In Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745, at [16], the United Kingdom’s Supreme Court held that Art 1F of the Refugee Convention should be interpreted narrowly and restrictively, because of the potential consequences of excluding someone from the application of that convention. That same “potential consequences” rationale should, in my view, inform the construction of s 36(1C) of the Act.
As the Respondent noted in his SFIC, in HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Tribunal did not consider that there was any necessary inconsistency between WKCG and DOB18 as WKCG did not equate “danger” to mere “risk”, but rather it would be considered sufficient for “danger” to be established if there is a real or significant risk or possibility of harm to one or more members of the Australian community. I agree that that is the case.
The Respondent submits that:
To the extent the comments made by Logan J impose a higher standard than that set out in WKCG, the Respondent submits that the standard set by Logan J is met in this case.
In the case of LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (LKQD), Jackson J held that the standard does not rise to the level of “very serious danger”. In relation to DOB18, Jackson J noted at [62]:
To the extent that Art 33(2) is an exception to the principle of refoulement, s 36(1C) can similarly be characterised as an exception to the principles of protection reflected in s 36(2). None of that requires any departure from the explanation of the ordinary meaning of s 36(1C) which Deputy President Tamberlin gave in WKCG. I note that Logan J, sitting on the Full Court, has recently held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’ and has suggested that may be inconsistent with WKCG: DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [83]. But even the standard suggested by his Honour does not rise to the level of ‘very serious danger’ urged on behalf of the applicant.
In relation to whether consideration of s 36(1C) requires a balancing exercise, Jackson J at [63] of his decision in LKQD found:
... the decision in SZOQQ is authority for the proposition that Art 33 requires no balancing between the undesirability of refoulement and the danger to the Australian community that an applicant may pose. SZOQQ was overturned in the High Court, but on a different ground that had not been put to the Full Court: see SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12; (2013) 251 CLR 577 at [16]. The Tribunal in the present case committed no error in following the Full Court in SZOQQ. The published opinion of the UNHCR in the note referred to cannot change that.
Counsel for both parties confirmed that, in their view, the exercise to be undertaken by the Tribunal did not involve balancing the potential harm to be suffered by the Applicant if he were to be returned to South Sudan against the potential harm to the Australian community if he were allowed to stay. I agree that that is the correct approach.
The relevant considerations in assessing whether the Applicant is a danger to the community are, in my view, those identified in [26] of Deputy President Tamberlin QC’s decision in WKCG (see [28] above). Each of those factors is considered below. I also address Logan J’s interpretation of the meaning of “danger to the Australian community” in [83] of his judgment in DOB18 (see [35] above). Both parties’ SFICs and submissions at the hearing were made on the basis of these being the relevant principles and considerations.
Nature and seriousness of the crimes committed
The Applicant concedes, as he must, that the GBH offence was very serious. The details of the GBH offence were set out in Martino CJDC’s sentencing remarks as follows:
[SQDD], you’ve been convicted on your plea of guilty of the offence of unlawfully causing grievous bodily harm with intent to do so. The maximum penalty for that offence is 20 years imprisonment.
At the time of the offending, you were aged approximately 31. You were at Midland Oval, in the evening of 7 October 2013, drinking with other people. An argument broke out between you and the victim, you knew the victim, you had been friends. You knew something of his background and he knew something of your background.
As a result of that argument, you each started pushing each other and the victim struck you to the head with a glass bottle, using such force that the bottle shattered. And this caused you to suffer a laceration to your head. You bled and you were stunned for a short time.
The victim started walking away from you. You were angry, you picked up some sticks and followed the victim, maybe challenged him to a fight. You punched him and he fell to the ground. While he was on the ground, you sat on him, and punched him repeatedly to the head while he was semiconscious. You stopped punching him when other people intervened.
You were later interviewed by police and you fully cooperated with police. You said to the police - and I accept that you did not wish to kill the victim - but you were angry as a result of the victim having hit you, and you wanted to teach him a lesson by causing him serious injury.
The victim did suffer extremely serious injuries. He underwent emergency surgery at hospital, he’s - he has suffered permanent injuries that are totally disabling. He is now living in a nursing home, he has severe cognitive deficits. That is, he has little mental capacity. He’s unable to stand or sit without being held in place into a wheelchair.
He’s unable to propel himself in a wheelchair. He’s unable to eat or drink, and he’s fed through a tube into his stomach. He cannot speak, he cannot care for himself. He is totally and permanently disabled as a result of the injuries that you caused to him in that rage.
The Applicant submits that it is relevant to the Applicant’s offending that “there was a significant degree of provocation from the victim”. Martino CJDC took account of that issue as follows:
The victim’s conduct in striking you with that bottle is also relevant. It provides no defence, but it was a provocation. I take that into account.
His Honour, however, immediately goes on to observe that:
But your offending was a totally excessive response to that provocation. You did not just follow the victim and punch him once; you continued to punch him after he had fallen to the ground and while he was semi-conscious.
The Applicant contends that it is also relevant that he accepted responsibility for the GBH offence by assisting police and pleading guilty. He contends that the sentencing judge was satisfied that the Applicant was remorseful for what he had done, had insight into his offending, was motivated to rehabilitate himself, and that he had the potential to live a law-abiding and useful life.
While it is the case that the sentencing judge did make those observations and the Applicant has repeatedly claimed that he accepts responsibility for what he did, I have some difficulty in accepting that he truly accepts responsibility for the offences which he has committed, particularly those involving violence or threats of violence. In his evidence at the hearing, both in relation to the GBH offence and the other offences involving violence, the Applicant repeatedly blamed his victims or, as a minimum, attributed significant responsibility for his offending to his victims.
In relation to his conviction for assault occasioning bodily harm in 2011, in November 2019 the Applicant had provided several documents to the Department in support of his application for a protection visa including a document headed “Disclosable History of My Offences”. In that document the Applicant described the circumstances of that offence (amongst others). In cross-examination excerpts of that document were read to the Applicant as follows:
In 2011 I got into trouble with the police for the first time. I was charged with assault occasioning bodily harm. This incident happened between me and a student from the Middle East who was also an international student. One evening two friends of mine visited me in the campus. I brought them two boxes of Extra Dry to drink. Shortly I left them in the room, and I went to the kitchen to cook food for them. At that time I was sharing a fridge with other students. My victim was also sharing another fridge with other students where he kept all of his drinks. A short time later my victim came with his cousin and he saw me in the kitchen cooking with my Extra bottle on the bench. Instead of saying hello to me he started abusing me by calling me a thief. He was accusing me of stealing his beer. He thought my Extra Dry bottle was his beer because they were a similar brand. I told him to check his stuff first because he would assault me for stealing but he kept swearing at me by calling me a slave, because he knew I was a South Sudanese and Arabs in the North Sudan slave people of South Sudan a long time ago. However, he was not aware that I could speak Arabic as well. As he kept swearing at me I knew something bad is going to happen between us because no-one ever accused me of stealing in my life. I grew up in Africa whereby a thief is a bad word to tell someone without a proof. In fact, I hate stealing in my life because a thief cannot marry according to the Dinka Bor culture. I tried to calm him down and to let him check his stuff first. A few minutes later he opened his fridge in front of everyone and thankfully he found all his 24 bottles in the box and he never apologised to me. He would furthermore swear at me by calling me a slave over and over again. From that moment I became upset and the rate of anger went up as he was insulting me. I knew he crossed the line. In our culture people blame you if you start the fight. If someone started on you first so that when you fight them later the public would not blame you, because you were not the cause of the problem in first place. As we were arguing he pushed me to the wall with the bottle in my hand. Suddenly the anger blinded me. I hit him with the bottle in the head causing occasionally bodily harm. Next morning the police arrested me. I was charged for an assault. I went to court and I pleaded guilty to the charge. After I went to court I addressed the court and I explained to the honourable judge why I did that crime. The judge understood my point, and I was fined. I didn't plan that crime but it happened because this student keeps calling me a slave, a thief, and for the fact he pushed me to the wall trying to fight me instead of apologising to me, was a pure provocation and I have a right to defend myself according to the law. In fact, I was disappointed because if the Sudanese community heard about this accusation against me then that would be the end of my life. No-one in the community would allow me to marry his daughter because I am a thief. In fact, shame and humiliation are the only value prevented adults in South Sudanese community to commit crimes such as stealing, robbery and burglar because chances for such criminals to marry in Dinka Bor is very rare. In our culture people scared or ashamed of the law itself because someone would lose his dignity if he becomes a thief in the community. For those who grew up in Africa and come to Australia as the adult like me would not steal, would not break into someone's house and steal or he would not rob someone on the street. Once he did that the community would reject him. If he married, his wife must divorce him because he is a thief. In our culture you better be killed than to be called a thief. For South Sudanese that came to Australia as children and those that were born in Australia the Sudanese culture in crimes like stealing, robbery or burglaries are easy to be committed by them, because there are no consequences of shame in Australia. My mum can even commit suicide if I become a thief in Australia because our people worry about what other Sudanese would say about their family. This is the reason I will never be a thief because I do not want to bring a bad name to my parents. My offenses were assault cases because some people would start on me sometimes and I retaliated after. I know I cannot attack anyone on the street without a cause or provocation because I don't fight for fun. I don't (indistinct) crimes because crimes are not my priorities.
The Respondent’s counsel then read the Statement of Material Facts (included in R4) that was read to the Court at the time of the Applicant’s conviction as follows:
The victim and the accused in the matter are known to each other and both reside on campus at the Edith Cowan University in Mount Lawley. At about 1.15 am on Friday, 20 May 2011, the victim and the accused were at the complex situated at unit 3, 2 Bradford Street, Mount Lawley. The complex is made up of a number of individual bedrooms and a common kitchen and living area. The victim identified that he was missing a bottle of beer from the common fridge in the kitchen area of the unit. He observed the accused drinking a bottle of beer of the same brand as was missing and asked the accused if he had taken one of his beers. The accused denied any involvement. Moments later the accused left the area and returned to his bedroom. The victim remained in the common room and continued to drink and socialise with friends. At about 2.30 am the accused exited from his bedroom and confronted the victim in an aggressive manner. The accused demanded to know why the victim had accused him of being a thief. The victim told the accused everything was all right, and turned to walk away. The accused punched the victim to the right side of his neck. The victim stood up and faced the accused. Without warning the accused struck the victim with the bottom end of an empty stubbie of beer striking him just above his left eye. The force of the strike caused an immediate laceration to the victim's forehead which was accompanied by bleeding. The victim instinctively grabbed the accused by the shirt and the pair were soon after separated by other persons present.
Asked by counsel to explain the significant differences between his version of the event and Statement of Material Facts, the Applicant’s evidence was that the version on the Statement of Material Facts was that of the victim and that the Applicant’s lawyer had advised him not to give a statement to the police. The Applicant’s evidence was that he had struck the victim because the victim had called him a slave and had “pushed him to the wall”.
The Applicant was legally represented at the sentencing for that assault. Asked why he, through his lawyer, did not contest the Statement of Material Facts and why he pleaded guilty based on the facts as read to the Court, he said that that is what his lawyer had advised him to do.
The Applicant was then cross-examined on a violence restraining order (VRO) taken out by his mother in September 2010. The Applicant’s explanation of the circumstances in which this VRO was issued were very difficult to follow. As far as I could work out, the Applicant’s claim was that he was told by a third party, another South Sudanese person, that the Applicant had been “set up” by his mother’s nephew and that “[t]hese people they want to separate you and your mum”. His evidence was that:
Two years later my mum cousin died, and nobody told my mum (indistinct), because they got what they want. My mum become (indistinct). So, one day I went to the house to tell the news about the death of this nephew, who died, he's also died. And that's when police they came and they say I'm not allowed. The other day I was (indistinct) at my mum's house, I’m coming for something important. What is this? The other day I smashed that window of my mum. So that case becomes (indistinct) after I went to prison, I can't even come to my mother's house (indistinct) and I was (indistinct). So when I went to prison and before I went to prison the VRO finished.
I assume that the Applicant’s above evidence relates to the breach of VRO of which the Applicant was convicted in September 2012 (see [5] above).
The Applicant was cross-examined on the conviction in April 2012 for wilfully and unlawfully destroying or damaging property. The Statement of Material Facts (included in R4) was read to the Applicant as follows:
At about 7.35 pm on Monday, 10 October 2011, the accused was outside the victim's premises at [omitted]. The accused made numerous attempts to gain access to the victim's residence via the locked front security door and demanded to be let in. He was repeatedly denied entry by the victim, VRO in force due to welfare concerns for herself. Unable to gain entry, the accused eventually smashed the victim's front window with an unknown object causing it to shatter and gained entry. During the process he also pushed over a television causing damage to it. The victim ran from the accused to her next-door neighbour once he had gained entry to her premises. The police located the accused sitting on a couch inside the victim's premises.
The victim in this case was the Applicant’s mother. He denied the accuracy of the Statement of Material Facts. The following exchange occurred:
COUNSEL: So you're saying your mother didn't run away?
APPLICANT: Because I smashed the window is the police came, it's my mum who allowed me to come inside.
COUNSEL: Well, first of all, SQDD, it said - the material facts says that your mother denied your entry because she was afraid of her welfare, secondly that she ran away?
APPLICANT: No, you can't deny me.
COUNSEL: And, thirdly, SQDD, you smashed the window to gain entrance, so you wouldn't have been let in by your mother?
APPLICANT: No, I smashed the window when the police came, when they find me inside the house after, because I told them it's my mum house, because they said, "You're not supposed to be here".
The Applicant was cross-examined on the circumstances which gave rise to the GBH offence as follows:
COUNSEL: SQDD, I want to ask you some questions about the offence in 2013 that led to your conviction and your sentence of six years and 10 months. Now, you obviously remember that conviction. Can you tell me what happened on that occasion?
APPLICANT: Like I told you, I'm a victim, like I said. The victim stood up and smacked me in the head with a bottle. I find myself in a pool of blood. My girlfriend was sitting next to me. I was really (indistinct). So, this is whereby I wake up and retaliated. If I smashed you with a bottle what you going to do?
Counsel for the Respondent then put the sentencing judge’s comments quoted at [42] above to the Applicant. The Applicant denied the account of events in Martino CJDC’s remarks. He claims that he did not sit on the victim and continue to punch him until someone intervened but rather, he just hit the victim with a stick. Again he was asked why his lawyer did not contest the Statement of Material Facts before Martino CJDC. He did not provide an answer.
The Respondent’s counsel then took the Applicant to an email that he had provided to the Department about this incident on 6 February 2019. Part of that email was read to the Applicant:
They should consider my first conviction and the circumstances surrounding my conviction as well, because one of my South Sudanese a trouble maker at the same time attacked me with a weapon, injured me, and after I defend myself I … became a victim of law. I did not go and attack him in his house. He came to my address and provoked me and the Honourable Judge put the provocation into consideration according to my sentencing transcript.
The Applicant was then cross-examined on that statement as follows:
COUNSEL: What do you mean when you say, "I became a victim of law"?
APPLICANT: Look, a victim of law because I'm the only person who got charged and he never got charged.
The Applicant was taken to an email that he sent to the Department on 21 March 2019 in which he again emphasised that he had been attacked by his victim and only retaliated and hit him once. It was again pointed out to the Applicant by the Respondent’s counsel that his version of facts materially differed from the version in the Statement of Material Facts as read to the Court, in the Applicant’s presence, and repeated in Martino CJDC’s sentencing remarks. The Applicant could provide no explanation as to why neither he nor his counsel, who was an experienced criminal barrister, contested the facts as read to the Court. The Applicant’s evidence was as follows:
TRIBUNAL: …you were in court on that day, you had those facts, you were present when those facts were read out, did you tell your lawyer to contest those facts, or did your lawyer agree to the facts?
APPLICANT: I told my - I agree with the material facts because I told my lawyer the basis of this story, and I wrote the letter to be (indistinct) and I got it delivered today, I was supposed to bring that letter. The one - I have it in my property, the one I wrote with the (indistinct), and that is what I was talking about.
…
TRIBUNAL: On … 9 December … 2014, did you raise a contest, either yourself or through your lawyer on that day, that the material facts as read by the prosecution, or as recounted by the judge in sentencing were not correct?
APPLICANT: The judge was sentencing me when I pleaded guilty, and I went to - I came to court, and my lawyer was the one doing everything. You know, there's a problem in Australia here, people don't (indistinct) …
TRIBUNAL: … Just listen to the question, did you contest the facts on that day?
APPLICANT: I can't tell the facts because they are in the material facts. What can I change about them?
TRIBUNAL: All right.
APPLICANT: But that's not the exactly the story, how it happened.
Unfortunately, the above is just one of many examples of the Applicant failing to answer questions asked of him or becoming argumentative with counsel. The unsatisfactory way in which the Applicant gave evidence was raised with the Applicant’s counsel at the hearing. The issue of the way in which the Applicant gave evidence is addressed in more detail later in this decision.
The Applicant was also cross-examined on the offences that he has committed since he has been incarcerated (two incidents of “assault public officer”). He admitted to having, as he put it, “resist[ed] arrest”, but claimed that he did so because he was going to be “dragged down the back to (indistinct) unit, because the officers that beat me the week before that, because I'm black”. He claimed to have been assaulted by prison officers the week before following a fight that he had had with an Aboriginal prisoner.
The Applicant’s explanation for his second conviction of assaulting a public officer was as follows:
COUNSEL: You got a fine for one of them, SQDD, but you also got a concurrent sentence of six months for another one of those convictions?
APPLICANT: Because I got fined, another officer got fined himself, and he said he was injured in that thing, and they want to take me from Albany, and (indistinct) all the way Albany to Perth to go for court. That's why I pleaded guilty, not because I done it. I don't want to fucking be restrained, taken to Albany, from Albany all the way to Perth in that prison (indistinct). I plead guilty just to make myself free.
COUNSEL: Well, SQDD, so you disagree?
APPLICANT: Yes.
COUNSEL: Well, how did you resist arrest in your words?
APPLICANT: I resist arrest because I don't want to be taken solitary confinement.
COUNSEL: Not why, how? What did you do?
APPLICANT: Officer says when you go there they go and mug you. They put you in a cell, there's no camera. And they beat you up and I was beaten there before.
COUNSEL: You said that you resisted. What?
APPLICANT: I told you (indistinct) I'm already in the book.
COUNSEL: SQDD …?
APPLICANT: I already gave my story, yes. It's a true story.
COUNSEL: …it's important that you listen to my question. I'm not asking you why you did something, I'm asking you to explain what you did to these officers?
APPLICANT: I never done anything to them.
COUNSEL: All right. Well, the statement…
APPLICANT: They just go and write anything in the statement for the police. They pepper sprayed me. I couldn't even see them.
COUNSEL: So, you deny that you picked up an ashtray?
APPLICANT: I was pepper sprayed. I couldn't even see by myself.
COUNSEL: Do you deny that you picked up an ashtray and charged towards them?
APPLICANT: I can't remember that.
Following the above exchange, counsel for the Respondent attempted to read to the Applicant the Statement of Material Facts relating to that incident on 4 February 2015. The Applicant repeatedly interrupted counsel. The following exchange occurred:
COUNSEL: All right. Well, I want…
APPLICANT: I went there two times and that's it. I don't want to (indistinct). So why this one is important? You talk like I did a crime today, so what is your argument?
COUNSEL: Well, the importance is that this tribunal will want to know what your…
APPLICANT: Thing happened in 2015, we are now in 2021. Are we going backwards, or are we going forwards?
COUNSEL: SQDD, can you please answer my questions?
APPLICANT: Your question, it doesn't make sense. You asked me about something happened in 2015. We are in 2021. Ask me about what am I going to do?
COUNSEL: SQDD, I'm not going to engage in an argument with you about what the questions I'm asking. You can answer them, or you can refuse to answer them?
APPLICANT: Because you asked me about things that I already been punished for, things that are already passed. They are not important.
COUNSEL: One last time, SQDD, I'm going to read to you the statement of material facts and ask you to comment upon it. I'll ask you some questions when I finish reading the statement of material facts to you. That statement of material facts says…
Counsel then read the Statement of Material Facts to the Applicant and the following exchange took place:
COUNSEL: Did that happen, or do you accept that that happened?
APPLICANT: I don't want to talk about something that happened long time ago. Let's talk about the future.
TRIBUNAL: Well, SQDD, this is your chance to deny it, so unless you're going to deny it, then it'll be taken as … being correct?
APPLICANT: … is this - no, Mr Deputy President, I have to be frank, asking someone about something happened in 15 years', five years' time or seven years' time what it has to do with me, nothing.
TRIBUNAL: No, SQDD, the proposition is a simple one, do you want to answer that question as to whether or not that happened or not?
APPLICANT: It happened.
…
COUNSEL: So, you accept today that that happened, all of that happened?
APPLICANT: Happened, yes. Happened, sentence me again.
COUNSEL: And you accept that you charged at them with the ashtrays, that you hit someone to the back of the head?
APPLICANT: I said sentence me again, it happened.
COUNSEL: Because you've told the department a different story on another occasion, haven't you?
APPLICANT: I said it happened, sentence me again.
COUNSEL: In fact, you indicated to the department that the officers lied in order to get compensation?
APPLICANT: Whatever happened, happened. I don't want to talk too much.
Unfortunately, the above was not an isolated incident.
The Applicant’s criminal record is serious with multiple convictions for offences of violence. The Applicant himself concedes that the GBH offence was “very serious” (see [25(c)] above). That is clearly the case. The attack in the GBH offence was savage and resulted in catastrophic injuries to the victim.
The Tribunal does not accept the Applicant’s contention that he accepts responsibility for his criminal actions. To the contrary, even at the hearing he continued to blame his victims for the attacks and continued to claim that, somehow, he is the victim. In the case of each of his convictions involving violence, he blames the victim or attributes a greater or lesser degree of responsibility for the attacks to the victim. In the case of the most serious offence, the GBH offence, the Applicant continued to argue at the hearing that he merely retaliated to an attack on him and while, as the Applicant pointed out both at the hearing and in his written material, the sentencing judge acknowledged that there had been provocation, he seemed to have little appreciation of the totally disproportionate level of his retaliation.
Similarly, in describing the incident that gave rise to his conviction of assault occasioning bodily harm in 2011, in both the written material that the Applicant had submitted to the Department and in his evidence at the hearing, the Applicant placed significant blame for the attack on the victim. The victim in that case, according to the Applicant, had called him a thief and a slave. Again, the reaction was totally disproportionate. I am also concerned by the explanation that he gave at the hearing for these attacks which appeared to suggest that in the Applicant’s culture, this sort of reaction was not unacceptable. His evidence in relation to this incident was:
… I recall that when one of my friends is - he's not my friend, he's - we were in the student village, he accused me of stealing his gear and he found his stuff and he never apologised to me, and he's clearly in our culture, if you are a thief you never marry.
The Applicant explained the circumstances of that assault, and possibly the GBH offence (it is not clear), in the document headed “Disclosable History of My Offences” (see [47] above). The Applicant stated that:
My offences were assault cases because some people would start on me sometimes, then I retaliated after. I know I cannot attack anyone on the street without a cause or provocation because I don't fight for fun. I don't plan crimes either because crimes are not my priorities.
In relation to the victim of the GBH offence, the Applicant’s evidence at the hearing was:
…The cause of my problem was anger, and I was angry because of what had happened to me. And what I learned in the course is high risk situation. Because the people that I hang around with them, like this victim whom you stood to be on his side today, he killed someone in 2010 and got away with it. (Indistinct name), he killed a guy called [omitted], one of South Sudanese, and I was about to be his next victim. The victim now, the government minister he stood on his side, he’s a murderer.
This claim by the Applicant was repeated when counsel for the Respondent was making closing submissions on the genuineness of the Applicant’s remorse and acceptance of responsibility:
COUNSEL: … the applicant's submissions to the department reveal on a number of occasions that he feels aggrieved, victimised, he refers to himself as a victim of law, and his catastrophically injured victim as a trouble-maker and a murderer. He suggests he should not have pleaded guilty. He denies almost all of the important details of the offending…
APPLICANT: He's a murderer. He killed and I know…
COUNSEL: … those raise doubts
APPLICANT: … I know the guy he killed.
Shortly after the above interjections by the Applicant, when counsel for the Respondent was making closing submissions on the efficacy of the courses that the Applicant has undertaken, the Applicant made the following interjection:
COUNSEL: … We make the same submissions in respect of the rehabilitation courses that the applicant has undertaken, and note importantly that it is difficult to properly appreciate the difference or impact treatment has made where it has occurred in a custodial setting and with the immediate reward of parole. As so often expressed…
APPLICANT: Because he is a murderer and I will write a book about it.
COUNSEL: … by the respondent in these matters it's yet to be tested in the community…
The same victim blaming was present with the assault on public officers in 2015 (see [61]–[64] above) and in relation to the wilful damage and breach of restraining order convictions in 2012 in which he sought to blame his mother’s nephew who, according to the Applicant, had somehow and for some reason conspired to have his mother take out a VRO against the Applicant (see [51] above).
The length of the sentences imposed
The Applicant has been sentenced to two terms of imprisonment: for the GBH offence six years and ten months and for the second assault on a public officer, six months. The sentence imposed by Martino CJDC for the GBH offence indicates that Court’s view that the GBH offence was very serious. That characterisation is, in any event as I noted earlier, conceded by the Applicant.
Mitigating or aggravating factors
The obvious mitigating factors are the Applicant’s antecedents which are set out in some detail in the report of Dr Watts. At para 11 of that report Dr Watts describes that Applicant’s antecedents as follows:
The circumstances of his upbringing were of significant poverty and violence. In 1991, he and his mother fled their home village when it was invaded by rebel soldiers. He indicated that he and his mother escaped, although in 1992, he was taken to be a child soldier in the “Red Army” (SPLA). He said that he was tortured by soldiers but managed to escape and return to family. He and his mother then escaped to the Kenyan border and joined the Kakuma Refugee Camp in northern Kenya in August 1992. Other than attempting to go back to his home village, he was in the refugee camp until he came to Australia. He had very little to do with his father from when he left the village (but saw him briefly when he went back in 2006). Eventually, his father was kidnapped and killed in 2015. Apart from a few short attempts at returning to his village, he was in the Kenyan refugee camp before coming to Australia in 2008 on a humanitarian refugee process. He indicated that the last two years before coming to Australia, he was involved in teaching younger people in the refugee camp.
Dr Watts’ report describes the Applicant’s life after the initial period in New South Wales in para 13 as follows:
The five years between arriving in Western Australia and the index offence appear to have started well but gradually deteriorated, wherein he was abusing alcohol, had family conflict, was living in shared accommodation before becoming homeless when that shared accommodation fell apart. In these circumstances, he had a very rough situation, which he coped with by drinking heavily with friends. Over this five-year period, he committed a number of offences, which were dealt with predominantly by fines up until his conviction on 9 December 2014 on a grievous bodily harm charge resulting in a 6-year and 10-month imprisonment.
While the Applicant’s traumatic childhood and youth may be mitigating factors in considering a sentence to be imposed for an offence, it is difficult to see how they “mitigate” in considering the seriousness and nature of the Applicant’s offending or, more problematically, in considering the possibility, or even probability, of re-offending and the consequences to the community of such offending. The exercise that I must undertake is not one of assessing the Applicant’s offending culpability, it is assessing the likelihood of his re-offending and the risk that that would pose to the Australian community.
The Applicant’s antecedents, particularly the culture and attitudes to which he referred in his written material and in his evidence at the hearing, seem to have stayed with the Applicant notwithstanding his claims to the contrary.
While the Applicant’s antecedents might help to explain his violent offending, and in that sense be mitigating in considering his culpability, it is difficult to see how it is “mitigating” when considering the likelihood of the Applicant violently offending in the future—that is, being a risk to the Australian community in the future as he has been in the past.
Risk of re-offending/likelihood of relapsing into crime and prospects of rehabilitation
As Deputy President Tamberlin QC put it at [26] of WKCG:
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.
At [27] of WKCG, Deputy President Tamberlin QC further said:
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism In Re Salazar Arbelaez v 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.
As noted at [25(f)] above, the Applicant contends that the report of Dr Watts is the best evidence about the Applicant’s risk of reoffending. Even if I were to accept that assertion, in my view Dr Watts report, and his evidence at the hearing, is not particularly encouraging in relation to the risk of the Applicant reoffending as he has in the past.
In his report of 21 February 2021 Dr Watts makes the following comments and findings:
2. … I am an Adjunct Associate Professor in Clinical Psychology and endorsed in Forensic Psychology. I have approximately 30 years’ experience in conducting assessments of offenders for a variety of situations. This includes assessing people for violence risk assessment.
…
4. The additional test administered was the Personality Assessment Inventory (PAI).
…
14. I note that the period [SQDD] was living in Australia was relatively short, in that he arrived in 2008 and this offence occurred about five years later. He indicated that there had been some previous offending, but he did not see himself as being a dangerous person because, in all of the cases, the other party initiated. He further added that in Sudanese culture, the culpability rests with the person who initiates the fight, where he said he has come to understand that in Australia, it is the nature of the harm not who started it.
15. The first offence was an assault occasioning bodily harm with another student who accused him of stealing his beer and then calling him a name. He said that in his culture, somebody who steals cannot even get married. Consequently, he was highly offended by the accusation of stealing and, in that context, hit the person in the head who made the accusation…
16. The second offence related to a 2012 incident where there was a restraining order against him. He also smashed a window. He indicated that he had been drinking and was upset at the time.
…
18. The index offence that got him a 6-year and 10-month jail sentence, he was drinking with friends when the friends called a particular person over. He and this additional person had an argument. The other person hit [SQDD] in the head with a bottle, causing significant bleeding. He then retaliated and, in the result, caused significant harm. I note that he pleaded guilty to the offence and by pleading guilty, it means that he accepts responsibility for what occurred, resulting in a significant jail sentence.
19. In prison, he has also been charged with some assault offences. In these cases, they have come about because inmates have attacked him, and situations have arisen where, after he had been attacked for a cigarette, when restrained by officers, he reacted.
As noted above, Dr Watts applied a PAI test. Dr Watts described the PAI as not predicting offending but rather identifying factors in a person’s make-up which may be relevant to offending. Having applied the PAI, Dr Watts concluded that:
… This profile is suggestive of someone who has a combination of anxiety, depression and trauma, and drinks to self-regulate, which then increases the risk of reactive acting out. This profile could be in keeping with someone with an [a]lcohol [u]se [d]isorder, longstanding depression, Post-Traumatic [sic] [s]tress [d]isorder and [d]elusional [d]isorder. This is not suggestive of a major mental illness, other than Post-Traumatic [sic] [s]tress [d]isorder, and is likely to reflect the early deprivation and difficult life he has experienced.
Under the heading “Discussion”, Dr Watts opined:
21. Also, I note in my discussion that culturally, there are a number of very different beliefs around law, violence and self-defence. [SQDD] made it clear that he does not see himself as a bad person because, in his situations, he has never been the one to initiate the offence; his offences are retaliation.
22. I note in particular that the offence over being accused of stealing beer in 2011 is quite similar to the offence in 2013. It was retaliation action when confronted with a provocation.
23. I would comment that the relatively short period of time he lived in Australia would not have been sufficient to have been enculturated into Australian beliefs and knowledge of violence, and while ignorance of the law is no excuse, it certainly, in part, accounts for the offence. What I do notice in the offences is that he has not been the one to be the initiator; they are against known people in a conflict situation. Therefore, any potential danger to the Australian community would be limited to family and friends.
24. I do not have sufficient information about the initial offence to know how much beer had been drunk, but I do note, in the second offence, intoxication would be part of the issue. It is evident that drinking has been a significant issue. According to [SQDD], he has not used any drugs, but alcohol has escalated, especially over the period where he was homeless. I would suggest that if he continues to cease drinking, the risk of danger would be negligible.
In his report, Dr Watts concluded that it was likely that the Applicant had PTSD and that as a result he “has a fight or flight component that people overperceive threat and react”.
Dr Watts expressed the view that the Applicant had a number of positive assets, being of reasonably high intelligence (having written two books) and that he was able to maintain employment for two years until his contract ran out. These factors lowered the risk of the Applicant reoffending. Dr Watts reported that the Applicant:
… was speaking about how he does not see himself as a criminal (he sees a criminal as someone who intends to commit an offence, whereas he has only ever reacted). He also saw himself as being labelled by the Australian Government as a “bad person”. He also explained how, if I spoke to members of the Sudanese community, they would not see him as a danger. He has trouble comprehending the dynamic of specific risk (reoffending in a violent way) against him being a bad person.
Dr Watts’ report concluded that:
Overall, [SQDD] is not a danger to the general Australian community in any way. There is no evidence of risk against the general community. There is, however, based on his past offending, the risk of reoffending against known people in retaliation situations. In my opinion, having done an intensive violence course and also an addiction course, has helped shift his views and is likely to have significantly lowered the risk of reoffending in terms of specific people in such circumstances. I would see him as minimal risk of reoffending.
Dr Wojnarowska’s report dated 29 April 2021 relevantly stated as follows:
6. There are limitations in my formulation of [SQDD’s] case and his future risk of violence as the interview could only be conducted by phone. Without having access to [SQDD’s] nonverbal communication style and body language my mental state examination was limited.
7. There was also no reliable collateral information that would reflect [SQDD’s] personality style, interactions with others, school and work history from Africa or Australia.
…
10. I am a fully registered medical practitioner registered with the Australian Health Practitioner Regulation Agency (AHPRA). I have a specialty in Psychiatry with a subspecialty in Forensic & Child and Adolescent Psychiatry. I am a fellow of the Royal Australian and New Zealand College of Psychiatrists with 15 years’ experience in forensic psychiatry. I am a past secretary of the College Forensic Section of Psychiatry, and I am a member of the Australian Association of Psychiatry, Psychology and Law, American Association of Psychiatry and Law and Asia Pacific Association of Threat Assessment Professionals. I am a past Chair of the WA Branch of the Royal Australian College of Psychiatrists. I am currently employed in a position of the Medical Co-Director, Community Adult Mental Health for North Metropolitan Mental Health Services…
…
15. A support letter from [SQDD’s] mother dated 23 September 2019 described [SQDD] as “A law-abiding individual, my son [SQDD] has never crossed paths with law in the refugee camp where we came from and his years in this country, this is his first crime, and I hope this will remain the only one for the rest of his live in this country”. This letter indicated that [SQDD’s] closest support person was unaware of his criminal history in Australia.
16. The President of the South Sudan Community Association of Western Australia (SSCAWA) in his letter dated 07/05/2018 described [SQDD] as being a hardworking person who was “helping disengage youth by inspiring them through cultural activities to reconnect to their culture”. The President of SSCAWA expressed the opinion that “[SQDD] will find emotional support from his peers, elders and church leaders”. Although this could have been a protective factor, in [SQDD’s] case it appears that he continued to drink alcohol excessively, became homeless, withdrew from study and offended violently despite his community connections at that time.
17. Support letter from the Priest in Charge (Dinka Congregations), Anglican Church dated 10 May 2018 expressed the view that “[SQDD] has been well rehabilitated” and that he deserved a “second chance to rebuild his life”. It is not known whether the priest had knowledge of [SQDD’s] previous offending including his assault on a public officer or his breach of VRO.
18. [SQDD’s] uncle and cousins described [SQDD] in their letter of support dated 10 May 2018 as a well outspoken person who loves to offer himself to serve the community and they offered the assurance “We affirm that [SQDD] would be of good behaviours to us again and we assure you that we will try out best to assist him to reintegrated back to our community”. [SQDD] did not mention that he had an uncle and cousins in Perth when asked about his social supports.
19. There is also a support letter from [omitted], Graduate Student at Centre for Human Rights Educations [sic], Curtain University [sic] who reported that “[SQDD] survived a tribal massacre in 1991, in which he lost most of his immediate relatives including his siblings”. [SQDD] made no mention of surviving this event to the author and reported that his only sibling was a sister who passed away when he was 2 years old.
20. In 2015 [SQDD] was charged with Assault Public Officer during an incident that took place while he was incarcerated in Hakea Prison. There are no official details available but the Prison Parole Board (PRB) decision to release [SQDD] on parole indicates that his conduct had a notable improvement especially since the completion of mandatory programs. The PRB also noted that [SQDD] successfully completed the Intensive Violent Offender Treatment Program and Pathways Program with reported gains. For the purpose of this report, I was not provided with the facilitators reports of [SQDD’s] program completion.
…
27. … He described himself as a nonviolent person and stated that “crime comes to me”. He reiterated information that has not been accepted by immigration as being factual.
…
29. [SQDD’s] view of his risk of reoffending and factors relevant to this risk have been addressed in the HRC-20 Risk Assessment. On direct questioning he stated that he would walk away if provoked in the future.
Dr Wojnarowska assessed the Applicant using the Hare Psychopathy Checklist—Revised (PCL-R). She described the PCL-R as assessing the extent to which an individual’s personality structure conforms to the clinical construct of psychopathy and that the score obtained is an important component of other risk assessment tools including Structural Clinical Guides.
Dr Wojnarowska also applied the HCR-20 v3 which she described as a broad-band violence risk assessment instrument with potential applicability to a variety of settings. Dr Wojnarowska’s report sets out the results of the PCL-R and the HCR-20.
Dr Wojnaroska noted that the Martino CJDC accepted that the Applicant suffered PTSD, anxiety and depression and that Dr Watts had diagnosed the Applicant as having PTSD.
In relation to future plans, Dr Wojnarowska reported the Applicant as having told her that he intended to reside with his mother if he was allowed to stay in Australia. He said that his mother was supportive of him, however, Dr Wojnarowska noted a concern in that the Applicant had “behaved in an aggressive manner towards her in past”. He also reported to Dr Wojnarowska that he would like to return to school and complete his studies. He also said that he would like to publish more books. Dr Wojnarowska noted that it was unclear how the Applicant envisaged financially supporting himself in the community. He also reported to her that he had been advised by mental health staff in the detention centre that he would require counselling but did not know what the focus of therapy should be.
Dr Wojnarowska reported that the Applicant had advised her that he had no intention of using alcohol in the community, but noted that he had no plans on how he would avoid alcohol use. She noted his recounting a history of being kidnapped by the SPLA Red Army to be a child soldier, but observed that that claim had not been accepted by the Department. She thought that it is possible that he witnessed violence due to living in a warzone during his childhood and that as an adolescent he possibly witnessed violence of war although he denied self-involvement.
At para 69 of her report Dr Wojnarowska opined that:
It was difficult to assess [SQDD’s] personality as the interview was conducted over the phone and there was paucity of reliable information about his interaction style. However, based on PCL-R, there were some psychopathic traits presents as outlined above in PCL-R. In addition he is an unreliable historian who has provided an inconsistent account of his experiences in Africa over the years. Given his offending history in Australia, his impulsivity and alcohol use, I am of the opinion that he has some antisocial personality traits.
The Applicant advised Dr Wojnarowska that:
… he never had a happy childhood and was born into a life of poverty and war. He reported that his father beat him when he was 8 years old with a whip and that at the time he was unaware that this was not acceptable treatment as this was part of his culture.
Dr Wojnarowska’s report stated that:
[SQDD] used cultural difference as partial explanation of his offending. He now reports that he understands this is not acceptable behaviour in Australian culture.
Dr Wojnarowska’s report made the following observations:
85. [SQDD] appears to be capable and has demonstrated that he could be productive in a stable environment. He is intelligent, goal orientated and could secure employment if motivated.
86. It also appears that the leaders of the Sudanese community are willing to support him.
87. It is likely that [SQDD’s] fear of deportation may be a protective factor in future reoffending.
88. The most likely victim would be a person known to [SQDD] from his community or any other acquaintance who he perceives has been disrespectful or assaults him first. It is likely that he would have consumed alcohol but is also possible that he offends in a sober state.
89. Could be severe psychological and physical harm to the victim and/or witnesses with a high chance of escalation to serious or life-threatening violence.
90. [SQDD] has been sporadic in his offending and his risk of reoffending is not imminent.
91. Difficult to predict depends on [SQDD’s] willingness to adhere to pro social lifestyle. His risk is acute when intoxicated.
92. [SQDD’s] violence is associated with the presence of antisocial traits, impulsivity and driven by a need for retaliation; therefore, it is likely that he will return to using aggression, including physical, as means of conflict resolution.
In response to specific questions asked of her in relation to the risk of the Applicant committing further violent offences or other criminal conduct, Dr Wojnarowska in her report said:
95. The concept of risk of violence is multifaceted referring to the nature and likelihood that it will occur, the frequency, duration and seriousness. The risk of violence is inherently dynamic and contextual as violence arises and exists in certain circumstances. In [SQDD’s] case it is known that during his most serious incident of violence he was intoxicated with alcohol which was a disinhibiting factor that facilitated an act of violence; however according to his own description the violence was motivated by his need for revenge and facilitated by his impulsivity. Of concern is that he continued to repeatedly attack the victim, after the victim fell on the ground. This offence has not been an isolated incident of violence but an escalation to his previous offending. What is not known in [SQDD’s] history is whether he had perpetrated violence while living in Africa as if he had, that would suggest a chronic pattern of maladaptive behaviours that are likely to persist throughout most of a person’s life span. [SQDD’s] denial of previous violence does not hold significant value as he has been an unreliable historian.
96. I base my opinion of [SQDD’s] risk of future reoffending on the outcome of HCR-20v3 assessment, application of PCL-R and my clinical assessment with the later having limitations due to the mode of interview. The risk and protective factors have been outlined in HCR-20 v3 assessment. [SQDD’s] current presentation, his pro-social attitudes and demonstrated pro-social behaviour in the last 5 years were weighted against his history of impulsivity, propensity to use alcohol as a coping mechanism and becoming violent when intoxicated. These were taken into consideration when forming my opinion that his risk of future violence is in the moderate range.
97. In my opinion [SQDD’s] risk could be managed if he was subject to supervision in the community specifically in relation to his alcohol consumption by application of regular hair strand testing.
Both Dr Watts and Dr Wojnarowska gave evidence at the hearing.
Dr Watts’ Evidence
Relevantly, Dr Watts’ evidence at the hearing was as follows:
(a) PAI is not a risk assessment tool per se, however, is a useful “additional piece of information” in making an assessment on the risk of re-offending.
(b) The HCR-20 risk assessment tool, used by Dr Wojnarowska, is useful in assessing risk of re-offending, however, as Dr Wojnarowska acknowledged in her report, there were limitations on its usefulness in the present case because of a lack of early information and because the interview of the Applicant took place by video rather than in-person.
(c) He agreed with Dr Wojnarowska’s assessment that the Applicant’s risk levels “become acute when he is intoxicated”.
(d) He also agreed with Dr Wojnarowska that “… there was an incident where it wasn’t an alcohol, a factor, but the other factor was culture, which we both identified” and that “… his most serious index offence was serious, therefore a further offence, if it escalated, could become serious again”.
(e) The Applicant displayed some antisocial traits. Dr Watts did not see the Applicant as “having an impulsive personality” but rather his behaviour was “reactive” aggression more than “impulsive”. His view, agreeing with Dr Wojnarowska, was that “… if there was an offence, it’s not a general population offence, it’s likely to be somebody he knows in an offence, you know, in a retaliatory response rather than a general risk to general population”.
(f) Dr Watts had stated in his report that the Applicant having pled guilty to the GBH offence meant that he accepted responsibility for what had occurred. The Applicant was asked whether acceptance of responsibility for offences committed was an important factor in assessing risk of reoffending. His answer was:
It’s not an important part, but it’s a component, in the sense that if people understand that it’s their actions causing it and accepting that situation, then there’s much likelihood a lower risk than someone who goes ‘it wasn’t my fault, I didn’t do it, it’s not me’.
(g) In re-examination Dr Watts was asked what role he saw alcohol playing in the Applicant’s offending. His evidence was:
I think the alcohol is like the handbrake which then allows the other things to operate. So, I think the cause underlying it is the underlying trauma and arousal, then I think the alcohol is what disinhibits it, and when it’s disinhibited, that’s what makes it, you know, that’s why there’s an acute risk, because once disinhibited, it’s more intense, and doesn’t stop, you know, he hasn’t got the handbrake any more.
(h) I then asked Dr Watts a number of questions about the Applicant’s appreciation of the difference between Sudanese and Australian culture and attitudes and as to what, if any, impact the Applicant’s PTSD has on his risk of re-offending. The following exchange took place:
TRIBUNAL: … I don’t know that the applicant has been formally diagnosed with PTSD - was that your view, that he does at least display some of the symptoms or behavioural traits of PTSD?
DR WATTS: Yes, both the personality assessment inventory and his reported view of the history, and even to some degree his reaction when accounting some of his early history, certainly has a posttraumatic stress disorder flavour to it. I think it’s certainly a likely diagnosis, but I haven’t assessed him enough to formally diagnose him as PTSD, but there’s certainly indications of trauma and across both the interview, observation, and assessment, which means there’s a likelihood that there’s PTSD.
TRIBUNAL: If there is an underlying PTSD, diagnosed or not diagnosed, in circumstances of stress or those which you outline in paragraph 25, does that, untreated, increase the applicant’s likelihood of reoffending when confronted with those circumstances?
DR WATTS: It does, yes… Yes, it does, and you know, as I was saying a little while ago in the cross-examination, I’m sorry, re-examination, these sorts of symptoms are part of what may drive reactivity, and also drive, I mean, are harder to manage, and especially with alcohol. The flip side of it is, if they are successfully treated, it significantly lowers risk, whereas somebody who’s aggressive because they’ve got a head injury or brain damage, nothing’s going to lower that risk. So, it is a treatable aspect.
Dr Wojnarowska’s Evidence
Dr Wojnarowska’s evidence at the hearing was, relevantly, as follows:
(a) She agreed that the efficacy of HCR-20 was diminished when information (in this case the Applicant’s juvenile offending history (if any)) is not available, but she said that that information was:
Not critical, it is important obviously, because it shows you some chronicity of offending. However, we also look at his adult offending, and what is available.
(b) She also said that she had, in assessing whether the Applicant was a reliable historian, taken into account the history that the Applicant had given to the Department in his application for a visa which was assessed by the Department to be incorrect.
(c) Subsequent to her preparing her report she received further information relating to the Applicant’s offending in detention and the breaches of the VROs.
(d) Asked whether her view would change if it were establishing that the Applicant had not committed any offences prior to coming to Australia, Dr Wojnarowska responded:
Not much, because I still can see the chronicity. It would be still in a moderate range.
(e) She was also asked whether, if it were shown that the information provided by the Applicant to the Department which the Department found to be incorrect was in fact correct, would that change her assessment of risk. Her response was:
I’m not sure if it would be, to what extent, because obviously SQDD did not tell me the truth about his offence in Hakea, so he, and he was very evasive about describing what happened in relation to violence restraining order. So, on the other hand, I do find that people who committed offences are reluctant to admit the truth about what has occurred, even though they’ve been charged and pleaded guilty. But if he did not lie in relation to any other matters, I would probably say yes, he is a reliable historian and I can accept what he is telling me is accurate.
(f) Asked what she meant by the Applicant not being an immanent risk of re-offending, her evidence was:
So, it’s not the case that SQDD would be released and he will offend within the weeks, or even months. It would probably need to be a situation that he would find himself in, that would trigger his offending. That’s what I meant. So, he’s not driven by any violent thoughts or desire to offend.
(g) Her evidence as to who would be at risk of being a victim of the Applicant’s violent behaviour was people form the Applicant’s community, someone who disrespects or assaults him but also:
Now, having access to the statement of material facts, what happened within the prison, I probably will need to say that other people could be at risk as well. SQDD was not intoxicated at the time when he committed that offence, and it appeared that he wasn’t really provoked. So, this is quite concerning. I am also concerned about the fact that his mother had to take a violence restraining order against him.
(h) Asked then whether her view would change if it were the case that the Applicant had responded in detention as he had because he was afraid of the guards, Dr Wojnarowska’s evidence was:
Look, the very fact that he offended within such a structured and confined, that he could not actually contain his impulse is concerning. A person, even people who are notoriously violent, do not usually offend against the prison guards. They do, obviously, but there is that kind of stop sign, for someone who is within the prison system and understands that they are under certain regulations and they have to adhere to the prison’s protocol. So, if he is unable to restrain himself because he perceives that he has been provoked, how would that translate to the larger community? So, that’s my point.
…
Look, I have no issue with the way SQDD is thinking, I don’t think he, that he is antisocial in his attitudes at all. I do think that he is quite impulsive, and that, combined with alcohol use, culminated in him offending in a very serious manner in the community. And the problem that I see is that there was, because it couldn’t be an opportunity to test whether he is able to remain abstinent in the community, and how what he has learnt translates to his actions. Because obviously, the Christmas Island situation, again, is prison-like.
(i) Asked by the Applicant’s counsel what she saw as the Applicant’s way forward, her response was:
… ideally of course, the best would be if he was subject to some orders or restrictions, because if he were an Australian citizen, that is just to be released from prison, that’s what would be the best option, that he’s subject to an order, some type of an order that gives the people who supervise him authority to check whether he is drinking alcohol, to see if he is engaging in a prosocial manner, whether he is doing what he is telling us that he will do.
The Applicant undertook a number of programs and courses while in prison and detention. It is also the case that the PRB did grant parole, however, the PRB reasons for decision (a copy of the PRB order was not provided) indicated that, as is invariably the case, the parole was subject to conditions of supervision. While I acknowledge that the PRB’s assessment was that the Applicant’s level of risk of reoffending was such as to allow (albeit subject to conditions), as I noted in Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:
75. While the Tribunal acknowledges that parole was granted, it also notes that the Parole Board is assessing risk for the period from the date the prisoner is released on parole until the expiry of the maximum sentence. The parole period is a period of supervision during which the prisoner, depending on the terms, will be supervised by, and report regularly to a community corrections officer who will monitor the prisoner’s compliance with the parole conditions imposed by the Board. That does not mean that the Parole Board is of the view that the Applicant is not a risk to the community, not even for the period of his parole. The import of the parole order is that the Parole Board was of the view that, with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community.
76. The comforts that the Parole Board have in making an order for parole are that, firstly, it can impose conditions and, secondly, if the prisoner re-offends or breaches the conditions imposed, he will be taken back into custody and out of the community. This Tribunal does not have the benefit of those comforts when assessing whether an Applicant is an acceptable risk. Once an applicant’s visa is restored, the applicant is released free and unconditionally back into the community.
77. The Tribunal also notes and agrees with Senior Member Dr Evans-Bonner’s comment in Varley and Minister for Home Affairs [2019] AATA 376 at [110] that:
The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant’s likelihood of reoffending, based on the merits of the Applicant’s application before the Tribunal and the submissions and evidence before the Tribunal.
(Footnotes omitted.)
While the above observations as to the account that should be taken of the decision of the PRB to grant an applicant parole were made in cases under s 501 of the Act, the same comments are applicable to the present case. The task that I have to undertake in assessing risk to the community for the purposes of s 36(1C)(b) of the Act, is a different exercise, involving different considerations and different circumstances to that undertaken by the PRB. The fact that the PRB has seen fit to grant the Applicant parole is, however, a factor that I have taken into account.
In closing, Mr Glenister for the Applicant agreed with Dr Wojnarowska’s characterisation of there being a chronicity to the Applicant’s offending up to October 2013 when he committed the GBH offence and that there was then “a bit of a gap in his offending over to 4 February 2015, when he committed the assaults on the prison officers, but one sees, from 2011 to 2015, a relatively consistent record of violent offences committed by the Applicant”. I agree with Mr Glenister’s assessment.
Mr Glenister argues that the common factor in the Applicant’s violent offending is that he was, in these cases, provoked. He submits that both Dr Watts and Dr Wojnarowska’s assessment was that the Applicant was not an immanent threat in the sense that he is unlikely to go looking for violent confrontation “against strangers in the community”. Mr Glenister conceded that a possible exception to that pattern, a point made by Dr Wojnarowska, was his offending against the prison guards.
The Applicant points to the fact that there is no record of violent behaviour or other offences committed since the assaults on the prison guard, although there are detention centre records that indicate incidents which the Applicant denies. In relation to the rehabilitation and other courses that the Applicant has undertaken, Mr Glenister’s summary was that in his evidence the Applicant was:
… able to give a reasonable account of the rehabilitation course that he did, the Violent Offenders course. He didn’t really touch on the Addictions course, but as he explained it, he considered that his anger was the main causative factor behind his offending and he has explained that he now recognises that unlike what may be the position in South Sudan, where if someone provokes you, you can do whatever you want to them, he knows that in Australia, that’s not the position, and that if someone provokes him or assaults him, he needs to walk away.
Mr Glenister also, rightly, expressed the view that:
… any person with a history like SQDD’s is always going to be at some risk of relapsing into his old ways and reoffending. However, the fact that he hasn’t done so for so long, and that he’s not an imminent risk of doing so has to be significant in the assessment of the danger that he poses to the Australian community, and that is, if you like, the main take-away that I submit both of the experts, that the evidence of both of the experts establish.
and that:
On the one hand, you have evidence of offending which caused the most serious of harm, short of a homicide-type offence. But on the other hand, you’ve got a man who only seems to offend in relatively confined circumstances, and who has now abstained from offending for some time, sorry, and hasn’t reoffended for some time.
As I noted above, the Applicant’s evidence was, in my view, unsatisfactory. He failed to answer straightforward questions, was argumentative and combative. In my view, by the way he gave evidence, he demonstrated an inability to control his emotions. As noted above, he repeatedly interrupted the Respondent’s counsel when he was trying to make closing submissions (see [71] and [72] above). Following the interjections referred to in the above paragraphs, the Applicant continued to interject, notwithstanding his counsel and me telling him to allow the Respondent’s counsel to speak. In the end I directed that the Applicant’s audio channel be muted. I asked Mr Glenister to comment on what I saw as a manifestation of anger management issues in the way that the Applicant had behaved in the hearing. The following exchange took place:
TRIBUNAL (to Mr Glenister): … in relation to the way in which the applicant gave evidence today, it became apparent that he has still significant anger management issues. Do you want to talk about that?
COUNSEL: Deputy President, I would submit that it’s perhaps, he’s very, anger, perhaps, is not the word I would use to describe it. I would call him obnoxious, argumentative, and perhaps headstrong. He, I would submit that that’s not the same question, that’s not the same at least kind of anger that caused SQDD to offend, but I think, as in all these cases, rehabilitation’s always a long road.
I accept Mr Glenister’s point that being unable to control his behaviour in the Tribunal proceedings is not the same as the Applicant not being able to control his anger and reverting to violence when out in the community, however, his inability to control himself in the relatively formal and controlled environment of the Tribunal hearing does not bode well for his ability to more generally control his emotions.
In relation to the Applicant accepting responsibility for his violent offending, I put the following to Mr Glenister:
Would you disagree with, I think, the characterisation that Mr Gerrard put to Dr Wojnarowska, or to Dr Watts, that the reality is that the applicant doesn’t really accept responsibility for what he’s done, he’s effectively denied each of the offences that was put to him and sought to blame others each time?
to which Mr Glenister responded:
The transcript will undoubtedly reveal that SQDD has given evidence which is somewhat inconsistent with, firstly, the transcripts of the District Court proceedings before Chief Judge Martino and secondly, the statements of material facts. With respect, it’s clear that SQDD feels somewhat aggrieved that he has been charged and convicted of these offences in circumstances where he was either provoked seriously or assaulted prior to the offences being committed. The main, while of course to some degree that might impact on the tribunal’s assessment of his insight, the main take-away that I would urge is that SQDD has now matured and has come to the realisation that it doesn’t matter what happens to him, he has to walk away. So, while he might personally feel aggrieved, he might personally feel that, as a South Sudanese man, he should be able to retaliate for these sorts of insults or assaults, he now understands that he can’t.
I do not agree with Mr Glenister’s assessment of the Applicant having changed, or more critically, having changed to a degree that he no longer poses a risk to the community. In relation to each incident comprising his significant criminal record, he in effect denied culpability and/or sought to blame others. In relation to each of his violent offences, his evidence at the hearing was, effectively, that he was the victim. I do not agree with Mr Glenister’s assertion that the Applicant has now matured. That was not evident from his evidence: neither its substance nor the way in which it was given.
Insofar as the expert evidence differs as to the risk of the Applicant engaging in further violent offending, I agree with Dr Wojnarowska’s assessment of the Applicant being a moderate risk of reoffending.
I also do not agree with the approach of Dr Watts, adopted by the Applicant, that the Applicant should not be considered a risk because he is not a risk to the general community, just to a limited category. On Dr Watts’ assessment, the Applicant posed no risk of offending against the “general community” but, on the basis of his history, does pose a risk against individuals in retaliation situations (see [25(k)] above). If the Applicant were allowed to remain in Australia, he would be returning to the same environment, the same circumstances and the same influences that saw him commit significant crimes of violence in what he saw as situations where he had been provoked. Even if he is not a risk to the “general community” in that he will not go out and attack strangers, he is still clearly a risk to those with whom he will come into contact, as he was in the past. His evidence at the hearing provides no indication that the courses and programs that he has undertaken in prison have addressed his overresponsive nature which seems to have been the root cause of his prior violent offending.
I am not satisfied that the Applicant has done enough to address the underlying causes of his violent behaviour which, according to both Dr Watts and Dr Wojnarowska, have their roots in his abuse of alcohol and his cultural attitudes. I am satisfied that there is a real or significant risk or possibility of harm to one or more members of the Australian community if the Applicant were to be released into the community. The Applicant poses an unacceptable level of risk of danger to the Australian community. In so finding I am mindful of statement of the Federal Court in Vabaza that:
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 submitted that, even if the comments made by Logan J in DOB18 (see [35] above) were to be taken to be setting a higher standard than that set out by Deputy President Tamberlin QC in WKCG, the standard set by Logan J is met in this case. At [83] of his judgment, Logan J stated that “read in context, ‘danger’ in s 36(1C) means present and serious risk” (see [35] above). If that is to be taken as the standard rather than that stated by Deputy President Tamberlin QC, then I find that, if the Applicant were to be released into the Australian community, he would be a present and serious risk.
DECISION
l find that:
(a) the Applicant has been convicted by a final judgment of a particularly serious crime, and
(b) the Applicant is a danger to the Australian community; and
(c) as a result the Applicant does not satisfy the criterion in s 36(1C)(b) of the Act.
Accordingly, the decision of the delegate of the Respondent made on 13 August 2020 to refuse the Applicant a Protection (class XA, subclass 866) visa under s 65 of the Act is affirmed.
I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 12 August 2021
Date of hearing:
17 May 2021
Counsel for the Applicant:
Mr H Glenister
Solicitors for the Applicant:
William Gerard Legal Pty Ltd
Counsel for the Respondent:
Mr A Gerrard
Solicitors for the Respondent:
Australian Government Solicitor
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