SVWW and Minister for Immigration and Border Protection (Migration)

Case •

[2018] AATA 1870

•

26 June 2018

SVWW and Minister for Immigration and Border Protection (Migration) [2018] AATA 1870 (26 June 2018)

Division:GENERAL DIVISION

File Number:          2017/5351

Re:SVWW 

APPLICANT

Minister for Immigration and Border ProtectionAnd  

RESPONDENT

DECISION

Tribunal:Member West 

Date:26 June 2018  

Place:Melbourne

The Tribunal sets aside the decision under review in respect of s.36(1C)(b) of the Act and remits the application for a Permanent Protection (Class XA) visa for reconsideration by the Minister with the direction that the Applicant satisfies the criterion in s. 36(1C)(b) of the Act and is not a danger to the Australian community.

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

Catchwords

MIGRATION – refusal of protection visa under s. 36(1C)(b) of Migration Act – criminal conduct – particularly serious crime – whether Applicant is a danger to the Australian community – assessment of risk of re-offending – decision remitted

Legislation

Migration Act 1958
Administrative Appeals Tribunal Act 1975

Cases

WKCG v Minister for Immigration and Citizenship [2009] AATA 512

MVLW v Minister for Immigration and Border Protection (Migration) [2017] AATA 1557

Briginshaw v Briginshaw (1938) 60 CLR 336

A v Minister for Immigration and Multicultural Affairs [1999] FCA 227

Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98

WKCG v Minister for Immigration and Citizenship [2009] AATA 512

REASONS FOR DECISION

Member West
26 June 2018

  1. This is an application for review of a decision by a delegate of the Minister of Immigration and Border Protection dated 17 August 2017 refusing to grant the Applicant a Permanent Protection (Class XA) visa (Protection Visa) under s. 65(1)(b) of the Migration Act 1958 (Act) on the ground that the delegate was satisfied, on reasonable grounds, that the Applicant having been convicted of a ‘particularly serious crime’, is a danger to the Australian community and as a consequence did not satisfy the criterion in s. 36(1C)(b) of the Act.

    BACKGROUND

  2. The Applicant entered Australia in 2011 on a Prospective Marriage (Temporary) (Class TO) visa.  He was married shortly after arriving and was granted a Partner (Temporary) (Class UK) (Subclass 820) visa in November 2011. He remained on that visa until it was cancelled in February 2015 by the Minister under s. 501CA of the Act.

  3. The Applicant worked in the construction industry and set up his own business in October 2011. His wife gave birth to a daughter in 2012.  His wife and daughter are both Australian citizens.

  4. In 2012 the Applicant was involved in an altercation in which he inflicted injuries on two men.  The altercation occurred when the Applicant confronted one of the men after he was told by his wife that the man had made unwelcome sexual approaches toward her.  This man was injured during a struggle with the Applicant.  The second man was injured when he came to the first man’s assistance.

  5. The Applicant was granted bail pending the hearing of criminal charges against him in the Supreme Court of Victoria.

  6. The Applicant pleaded guilty and was convicted of one charge of recklessly causing serious injury (Offence 1) and one charge of recklessly causing injury (Offence 2) and was sentenced to a term of imprisonment of 4 years in relation to Offence 1 and a term of imprisonment of 6 months in relation to Offence 2 with the sentences to be served cumulatively.  A non-parole period of 2 years was fixed.

  7. The Applicant was released from prison on parole and immediately taken into custody and placed in immigration detention.  He has remained in detention since that date.

    RELEVANT LAW

  8. Section 36(1A)  of the Act relevantly provides that an applicant for a protection visa must satisfy:

    (a)both of the criteria in subsections (1B) and (1C); and

    (b)at least one of the criteria in subsection (2).

    (1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

    (1C)  A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

    (a)  is a danger to Australia's security; or

    (b)  having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

    Note:          For paragraph (b), see section 5M.

    (2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)  a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or …..

    (2A)  A non-citizen will suffer significant harm if:

    (a)  the non-citizen will be arbitrarily deprived of his or her life; or

    (b)  the death penalty will be carried out on the non-citizen; or

    (c)  the non-citizen will be subjected to torture; or

    (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)  the non-citizen will be subjected to degrading treatment or punishment.

    ISSUES FOR DETERMINATION

  9. It was not asserted by the Respondent that the Applicant did not meet the criteria in s. 36(1B) or s. 36(1C)(a) of the Act.

  10. The delegate found that, if the Applicant was removed to his home country, there would be a significant risk he would suffer physical harm and possibly death at the hands of the brothers of the person he assaulted in Australia.  As a result the delegate found that the Applicant satisfied the criterion in s. 36(2)(aa) of the Act on the basis that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to his home country, there is a real risk that he will suffer ‘significant harm’.  This aspect of the delegate’s decision is accepted by the parties.

  11. There is no dispute in this case that the Applicant’s Offences satisfy the criterion that he has been convicted by a final judgement of a particularly serious crime as defined in s. 5M(a) of the Act, being an offence against a law in force in Australia  where the offence involved violence against a person punishable by imprisonment for a maximum term of not less than 3 years.  

  12. The sole issue for determination in this review is whether in accordance with the criterion in s. 36(1C)(b) of the Act  the Tribunal can be satisfied, on reasonable grounds, that the Applicant, having been convicted of a particularly serious crime, is a danger to the Australian community.

    EVIDENCE

  13. In conducting the review I have had regard to the documents produced to the Tribunal by the Respondent pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T Documents) and to the following:

    ·written statements of the Applicant dated 6 February 2018 (Exhibit A1) and 11 April 2018 (Exhibit A2);

    ·a written statement by the Applicant’s wife (Exhibit A3);

    ·a report by Mr Patrick Newton, Clinical and Forensic Psychologist, dated 9 February 2018 (Exhibit A4);

    ·various documents filed by the Applicant under cover of a letter dated 5 March 2018 (Exhibit A5); and

    ·the oral evidence of the Applicant, the Applicant’s wife, the Applicant’s father-in-law; the Applicant’s brother-in-law; a community faith leader, Mr Patrick Newton and associates of the Applicant Mr X, Mr Y and Mrs Z.[1]

    [1] The Applicant’s relatives have not been identified by name in accordance with s.501K of the Migration Act.

    PRINCIPLES

  14. In WKCG v Minister for Immigration and Citizenship[2], Deputy President Tamberlin set out principles to be applied in considering whether a person constitutes a danger to the Australian community as follows[3]:

    ·whether a person constitutes a danger to the Australian community is one of fact and degree and regard must be had to all the circumstances of each case;

    ·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 criminal history is relevant and must be looked at as a whole and prospects of rehabilitation assessed;

    ·the risk of reoffending and recidivism and the likelihood of relapsing into crime is a primary consideration;

    ·the assessment goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat to a member of the Australian community;

    [2] [2009] AATA 512.

    [3] Paragraphs [25] and [26].

  15. I adopt the reasoning of Deputy President Tamberlin as to the principles to be applied in assessing whether the Applicant is a danger to the Australian community. It is important that the Tribunal is consistent in its approach to these matters.  However, I do not accept the Applicant’s submission that this means I should undertake an exercise in comparing the factual basis for the Deputy President’s decision with the facts in this case.   Each case should be judged on its own facts.

  16. Deputy President Tamberlin further observed in WKCG[4] that the words ‘having been convicted’ in s. 36(1C)(b) operate to limit the class of persons on whom the provisions operates and that the question whether a person ‘constitutes a danger’ is a separate additional matter to be independently established[5]. I concur with this interpretation.  While the nature and circumstances of the offence are clearly relevant to the question of whether the person is a danger, they are not conclusive.

    [4] Paragraph [29].

    [5] See also A v Minister for Immigration and Multicultural Affairs [1999] FCA 227.

  17. I have had regard to the Applicant’s submissions regarding the relevance of the Refugees Convention and accept that s. 36(1C)(b) reflects the terms of Article 33(2) of the Convention which sets out an exception to the general non-refoulement obligations in Article 33(1).  The Applicant submits that it necessarily follows that the criterion in s. 36(1C)(b) is “only meant to be applied in extremely rare occasions”[6]. I do not accept that this conclusion is relevant to the question before the Tribunal.  While determination of the question before the Tribunal against the Applicant would bear on any decision to deport him, the Tribunal in these proceedings is not required to assess the magnitude and nature of the risk and decide whether it provides a proper basis for making an exception to Australia’s non-refoulement obligations.  It is the Tribunal’s role in this case solely to determine whether there is a danger to the Australian community and in doing so identify the nature and extent of that danger.

    [6] See [21] of Applicant’s Outline of Submissions.

  18. In assessing whether the Applicant poses a danger to the Australian community the Applicant correctly contends that there must be an evidentiary basis for the assessment.  The possibility that the Applicant will harm a member of the community must be assessed on the basis of the principle in Briginshaw v Briginshaw[7] which requires the Tribunal to be comfortably satisfied on the balance of probabilities that the Applicant is a danger to the Australian community.  I accept that in assessing the degree of satisfaction it is appropriate to have regard to the gravity of the consequences flowing to the Applicant should a finding be made against him.  The Respondent has accepted that there is a risk of serious harm and possibly death if the Applicant is deported to his home country in accordance with s. 198 of the Act, and I note that s. 197C of the Act imposes a duty on an officer to deport him under s. 198 irrespective of Australia’s non-refoulement obligations.

    [7] (1938) 60 CLR 336.

  19. In assessing whether the Applicant poses a danger to the Australian community I adopt the views of Senior Member Tavoularis in MVLW v Minister for Immigration and Border Protection (Migration)[8], where he stated:

    1. In written submissions filed on behalf of the Applicant, there is a genuinely made effort to facilitate a definition of “danger” or recidivism by, inter alia, reference to (1) a timeline or chronology of the Applicant’s offending, together with (2) a comparative focus on the nature of the previous offending constituting the dominant or most significant theme of an applicant’s history.
    2. …
    1. I respectfully disagree with the Applicant’s approach to the assessment of danger. To my mind, it is too formulaic and otherwise has an overly dominant focus on what has occurred in the past (in terms of an applicant’s history). I think that, instead, consideration should be given to what steps, if any, have been taken by this Applicant to demonstrate that previous factors suggesting a presumption of danger and recidivism have been brought under control and are capable of being managed, were the Applicant released into the Australian community.(emphasis added)

    [8] [2017] AATA 1557.

    ASSESSMENT OF THE EVIDENCE

  20. There is no doubt that the Applicant’s convictions for recklessly causing serious injury and recklessly causing injury are serious violent offences which had a significant deleterious effect on the two victims.  One of the victims suffered multiple wounds inflicted by a knife and the other had phosphoric acid sprayed into his eye. A repetition of this kind of conduct would clearly represent a danger to the Australian community.  I am required to assess the risk that the Applicant will engage in such conduct in the future in deciding whether the Applicant satisfies the criterion in s. 36(1C)(b).

  21. In considering the nature of the Applicant’s offences in the context of future risk I have had regard to the seriousness of his conduct.  The Applicant’s counsel conceded that the offences in question were serious but urged me to regard them as a ‘crime of passion’, which I take to mean that it was conduct undertaken in the heat of the moment.  I do not accept this characterization. The evidence established that the Applicant initially acted responsibly by reporting the matter of his wife being sexually assaulted or harassed to the police but then, a day later, he decided to take matters into his own hands by confronting the victim himself.  The Applicant’s offences were a disproportionate response to the alleged conduct of the victim, and are properly described as reckless.[9] 

    [9] See Sentencing Report  at paragraph [49] – T Documents at page 295.

  22. I have also had regard to evidence of the Applicant’s general conduct prior to the incident.  The evidence did not show that the Applicant had a history of violence prior to the incident.  He had no prior convictions and the character witnesses who gave evidence at the hearing were consistent in stating that he was a hard working respectable person who was not known to be prone to violence.   In imposing sentence the sentencing judge accepted evidence that the Applicant’s conduct was ‘out of character’[10].

    [10] See Sentencing Report at paragraph [38] – T Documents at page 294.

  23. The court’s sentencing decision notes the assessment of Mr Newton who provided a psychological assessment report in 2013 for the purpose of sentencing.  Mr Newton’s assessment at that time was that the Applicant was a conservative individual who sets high standards for himself and those around him. He said that the Applicant placed a strong premium on providing for his family through hard work, and that he was respectful of lawful authority.  Mr Newton found no indication of psychopathic or antisocial traits in the Applicant’s personality. He did say, however, that he considered the Applicant to be a little too rigid in his commitment to values.  Mr Newton reviewed the Applicant’s anger management skills and concluded that the results of the review were generally positive, although he noted that the Applicant was sensitive to any behaviour or any implication that might reduce the Applicant’s standing in the community or lead to a loss of face with those whose opinions he valued.  He observed that should the Applicant ‘lose face’ he was apt to experience an intense and distressing sense of emotional arousal and to respond with strongly assertive efforts to re-establish his standing.

    Assessment by Authorities

  24. In assessing the risk that the Applicant poses a danger to the Australian community if granted a visa I have had regard to the assessment of responsible authorities over the six years since the commission of the offences.  These independent assessments are consistent in that they indicate that the Applicant represents a low risk of re-offending.  In particular I note the following:

    ·The Applicant was granted bail pending the hearing of charges against him arising out of the Incident. The reasons of the Magistrate for granting bail were not in evidence, but I note that s. 4(2) of the Bail Act 1977 (Vic) provides that the court shall refuse bail if, among other things, the court is satisfied that there is an unacceptable risk that the accused would commit an offence while on bail or would endanger the safety or welfare of members of the public. I am prepared to infer from this that the court did not assess the Applicant as representing an unacceptable risk of reoffending while on bail. As events subsequently showed he did not reoffend during the twelve months he was on bail.

    ·In sentencing the Applicant the Supreme Court assessed the evidence available at the time regarding the risk that the Applicant would re-offend.  The sentencing judge concluded on the basis of the evidence that:

    “I am satisfied that you have good prospects of rehabilitation, and are unlikely to offend in this manner again.  I note, however, the reservations expressed in Mr Newton’s report to the effect that the prospect that you would engage in overt physical violence is ‘relatively low in ordinary circumstances’.  The concern I have relates to what you might do in circumstances that are out of the ordinary.  Nonetheless, I am prepared to give you the benefit of the doubt in relation to that matter”.

    ·While in prison the Applicant was assessed as a low risk prisoner and his prison record shows that there were no incidents of misconduct while in prison[11].

    ·In sentencing the Applicant the Court fixed a non-parole period of 2 years. The Applicant was released from prison on parole within 10 days of the conclusion of that minimum period. The decision of the Parole Board was not in evidence but I note that s.73A of the Corrections Act 1986 (Vic) requires the Parole Board to give paramount consideration to the safety and protection of the community in determining whether to make a parole order. I am prepared to infer from this that the Parole Board was satisfied that the Applicant was not a threat to the safety of the community at the time it made its decision.

    ·The evidence consistently demonstrates that the Applicant conducted himself responsibly in detention and that he was assessed as low risk[12].  He was described as ‘polite, engaging and co-operative’ by his Case Manager at the Maribyrnong Detention Centre who also noted that there had been no behavioural concerns or behaviour related incidents involving the Applicant while in the Centre.[13]

    [11] Exhibit A5.

    [12] See for example T Documents at pages 279-280.

    [13] See T Documents at page 273.

  25. I give substantial weight to the Applicant’s good conduct while in prison and in detention.  For many crimes incarceration isolates the offender from opportunities to re-offend so that it is hard to judge whether the person will re-offend when released into the community.  In the case of crimes involving physical violence, however, incarceration provides a setting in which the person has the opportunity to re-offend in a similar manner and situations can arise where the person is motivated to do so.  An example of this is the Applicant’s evidence of the provocation he experienced from other detainees over his work in the vegetable garden while in detention[14]. 

    [14] See discussion of incident at [50] below

    Psychological Assessment

  1. Evidence was given by Mr Patrick Newton, a clinical and forensic psychologist, who assessed the Applicant in February 2018.  His written report was received into evidence.[15]   Mr Newton’s assessment was that:

    [15] Exhibit A4.

    ·     The Applicant had experienced symptoms of trauma in response to conflict and family violence to which he was exposed as a child in his home country;

    ·     he had experienced only normal mood fluctuations while in prison;

    ·     he found life in detention more difficult due to the indefinite nature of his incarceration, his isolation from his wife and child and his exposure to some traumatic events such as suicide attempts and violence;

    ·     he received ongoing mental health treatment in detention for symptoms of post traumatic stress disorder (PTSD) and panic disorder he experienced as a result of exposure in detention to suicide attempts and violence by other detainees;

    ·     he continues to suffer multi-faceted anxiety across physical, cognitive, emotional and interpersonal domains stemming from his past trauma as a child and exhibits symptoms of PTSD and depression;

    ·     he was assessed as low risk of recidivism on the HCR-20, a structured professional judgement instrument;

    ·     he had sought guidance from mentors in his faith community to work through issues associated with his offending;

    ·     he had made good use of the rehabilitative opportunities available to him to address issues in his conflict management skills; and

    ·     he was able to discuss a range of strategies for avoiding the repetition of conflict in the future and his rate of progress with anger management treatment was at the high end suggesting that he had effectively resolved the issues that concerned Mr Newton when he assessed him in 2013.

  2. Mr Newton concluded in his report that the Applicant’s “..assessed level of risk is the lowest level possible on any actuarial instrument and is commensurate with that of a normal community-dwelling adult”[16]. 

    [16] Exhibit A4.

  3. I give substantial weight to Mr Newton’s assessment.  He had the opportunity to assess the Applicant’s development over the time since the offences, having prepared a report for the sentencing judge in 2013.  His expert evidence was not challenged.  The Respondent did not call any expert psychological evidence and the Respondent’s counsel conceded in submissions that Mr Newton’s assessment should be accepted.

    Applicant’s Remorse

  4. The Applicant has been consistent in expressing remorse and accepting responsibility for his behaviour.

  5. The sentencing judge took into account in his sentencing decision that the Applicant had pleaded guilty and expressed genuine remorse[17].

    [17] See Sentencing Report at paragraph [44] – T Documents at page 295.

  6. A Victorian Intervention Screening Assessment conducted by Corrections Victoria in April 2013[18] noted that the Applicant “..engaged well during the interview and he was polite and co-operative with the writer.  He expressed remorse for committing his offences and openly discussed his offending behaviour.  He demonstrated victim empathy and identified anger and a lack of consequential thinking skills as the main precursors for his offending behaviour”. 

    [18] See Exhibit A5.

  7. A community faith leader gave evidence that the Applicant was remorseful and genuinely regretted his actions.  He also said that the Applicant had wanted to reconcile with the victims and apologise for his conduct but the leaders of his faith community decided that it was best not to attempt reconciliation because of the attitude of the victims[19].  The community faith leader also gave evidence that while on bail the Applicant had engaged in a religious process which required him to confessed his crimes in a meeting with members of the faith community, he had donated a lot of money to widows and children in the community and participated in 28 or 29 sessions with teenagers offering them guidance with their problems[20].

    [19] Transcript at p.59.

    [20] Transcript at p.59.

  8. The Applicant gave evidence about his remorse.  He said in evidence that what he did was a cowards act, an absolute cowards act.  He stated in his first witness statement that:

    “I want to say first and foremost, that nobody is responsible for my offending but me.  I can talk about what happened around that time, and what was happening inside my mind at the time, but in the end it was me.  At the time I was so desperate to prove myself to (name of wife), to her parents and in particular her mother so that she would not regret marrying her daughter to me, and in the end I was struggling to prove my worth, and the only language I had to do this was through anger.  That is not who I ever want to be, and not who I am anymore”.

  9. He acknowledged in cross examination that he had a problem with anger[21], although at times under cross examination the Applicant preferred the word ‘frustrated’ and he was reluctant to readily make reasonable concessions regarding his emotional state at the time of the offences.  The Applicant’s counsel sought to explain the use of terms such as ‘frustration’ as merely a matter of difference of language.  I do not accept this submission.  The Applicant did seek to underplay the depths of his anger during cross examination and was defensive at times.  Nevertheless, I do not conclude from this that it indicated a lack of genuineness on the Applicant’s part.

    [21] Transcript at page 21.

  10. The Respondent also asserted that the Applicant’s refusal to admit that he was angry with his father and brother who each beat him as a child showed that he was attempting to downplay his emotional responses and lacked a genuine acceptance of responsibility.  I do not draw any conclusions from his refusal to say that he was angry at his father and brother.  The Applicant said that he was afraid and saddened by their mistreatment of him, and he had some sympathy for his father’s position given his mother’s invalidity.  These are understandable responses.  It is no more than presumption that he should have felt anger. 

  11. Having considered the Applicant’s evidence in total, I find that the Applicant was a truthful witness who is genuinely remorseful and fully accepts responsibility for his actions.

  12. The Respondent cross examined the Applicant about his conduct during and in the immediate aftermath of the Incident and submitted that his answers demonstrated a failure to fully accept responsibility for his actions.  I am reluctant to make findings in relation to the conduct of the Applicant during the incident and in its immediate aftermath because the evidence in these proceedings is far from complete.  I rely on the findings of the Court in its sentencing judgement, and particularly paragraphs [25] to [29].  I do not give these findings regarding the Applicant’s conduct in the immediate aftermath any weight in assessing the likelihood that he will re-offend in the future.  In the immediate aftermath the Applicant’s behaviour, as found by the Court, did not appear to be rational and his Honour noted at [28] that the Applicant appeared agitated when the police attended at his home to arrest him. I prefer the evidence of the Applicant’s conduct over the six years since the Incident in assessing his propensity to re-offend in the future.

    The Risk of Confrontation with the Victims and  the Applicant’s Response

  13. A central contention of the Respondent was the perceived risk of future violent behaviour by the Applicant arising from the prospect of residual conflict between the Applicant and the victims and their families, friends and associates.   The Respondent asserted that this risk was not far-fetched or fanciful. The Respondent referenced the observations of Mr Newton in his 2013 sentencing report that should the Applicant ‘lose face’ he was apt to experience an intense and distressing sense of emotional arousal and to respond with strongly assertive efforts to re-establish his standing. The contention is reflected in the sentencing comment of the sentencing judge where he said:

    “The concern I have relates to what you might do in circumstances that are out of the ordinary”.

  14. This contention requires a consideration of two factors; the likelihood that a situation will develop whereby the Applicant is provoked by the victims or their families and associates, and secondly, the risk that the Applicant will respond to such a situation with violence.

    Risk of Confrontation

  15. The Respondent’s contention is based largely on supposition rather than any evidence that there is a risk of confrontation between the Applicant and the victims.  It proceeds from the evidence that the victims have made credible threats that their family and associates in the Applicant’s home country will inflict harm on the Applicant should he return.  However, there is little actual evidence that the victims have themselves threatened to harm the Applicant in Australia.    

  16. The evidence is that the Applicant lived in the community for twelve months while on bail immediately after the commission of the offences and there is no evidence of any confrontation between the Applicant and the victims or their family and associates during that time. Evidence was given of incidental contact between the Applicant and the victims during this time, at the supermarket, the beach[22] and on numerous occasions at the mosque[23], without there being any confrontation by the Applicant. 

    [22] See Transcript at page 7.

    [23] See Transcript page 64 at [37].

  17. It has now been over 6 years since the commission of the offences.  It is reasonable to assume that the risk of confrontation has diminished with the passage of time.  In addition the Applicant has been incarcerated for almost five years as a direct result of his offending and it is reasonable to assume this will ameliorate the risks since it is likely the victims will accept that the Applicant has paid a significant price for his crimes.

  18. There is direct evidence from the community faith leader regarding the risk of a confrontation between the Applicant and the victims.   He has had frequent contact with the Applicant and the two victims and their families.

  19. In relation to the principal victim the community faith leader said that he has refused offers to reconcile with the Applicant and that he wants the Applicant to be deported as he knows that he will get his revenge overseas.  When asked directly about the risk that the principal victim will carry out threats against the Applicant in Australia he replied “Here, not at all”[24].  He added that the local faith community does not feel that the principal victim will go out of his way to harm the Applicant in Australia if he is released.  He added in relation to the principal victim:

    “Well he’s made it clear to myself and other religious leaders that he just doesn’t want to have anything to do with SVWW.  He has made it clear, but he’s also made it clear, and it’s, I think fair to say this, he just doesn’t want to be in his way, or doesn’t want to have anything to do with him”.

    [24] See Transcript at page 63 at [12].

  20. In relation to the second victim the community faith leader stated that he knew the family very well and the second victim had not made any threats against the Applicant[25]and neither he nor his family had any intention of harming the Applicant.  He added that the father of the second victim prays for the Applicant to be released and to just have this done and dusted.[26]

    [25] See Transcript at page 62 at [23].

    [26] See Transcript at page 64.

  21. Mr Newton observed that threats of revenge are quite commonplace after violent crimes but in his experience such threats are rarely acted upon when the person is released from custody[27].

    [27] See Transcript at page 72 at [5].

  22. Having considered this evidence I am satisfied that there is a low risk the Applicant will be provoked by the victims or their families and associates.

    Likely Response

  23. In the event that a confrontation did occur between the Applicant and the victims or their family or associates I am required to consider the risk that the Applicant will respond with violence.

  24. The Applicant gave evidence that he has engaged with counselling and psychological therapy with all of (his) energy, and had made arrangements to continue with psychological care once back in the community[28].

    [28] Exhibit A2 at [4].

  25. In giving his evidence the Applicant demonstrated a real understanding of the anger management principles he had learned and a genuine interest in them[29].   This was demonstrated in his evidence regarding the incident that arose during his time in the Maribyrnong Detention Centre.  He recounted that he was working in the vegetable garden and was confronted by some other detainees who abused him for working for the Centre operator.  His response was to make soup from the vegetables he had grown and to serve it to his fellow detainees and through this he diffused the confrontation with the detainees who had abused him.

    [29] See for example his evidence regarding Dr Daniel Gorman’s book Emotional Intelligence at Transcript page 29.

  26. The evidence of the community faith leader was that he was confident that the Applicant would not resort to violence if provoked.

  27. Mr Newton noted in his report[30] that the Applicant had participated in various programs to assist in mood management and stress reduction while in prison and these appear to have equipped him with a range of skills to manage his emotions while in prison and he had engaged in anger management training while in detention.  He also noted that the Applicant’s improved English skills had enabled him to access self-help books and similar materials. 

    [30] Exhibit A4.

  28. Mr Newton was asked in his oral evidence to comment on the hypothetical circumstances where the Applicant was subject to a threat from the victims or their families or where he simply came into contact with them. He stated that the anger management strategies that the Applicant had been trained in were designed to address either situation and he was satisfied that the Applicant would apply those strategies to avoid conflict.  Counsel for the Respondent conceded that Mr Newton had reached solid conclusions regarding the hypothetic situations put to him.

  29. I am satisfied on the basis of this evidence that, should the Applicant have contact with the victims or their families or associates (whether or not provocation is involved),  there is a low risk that the Applicant will respond with violence.

    Character Evidence

  30. Several members of the Applicant’s wife’s family, and community members gave character evidence in support of the Applicant.  The Applicant also tendered documentary evidence from numerous members of his local faith community indicating their support for his return to the community, including an offer of employment

  31. The family members and associates called as character witnesses[31] were generally reluctant to acknowledge the seriousness of the Applicant’s conduct, preferring to describe it as an act of self defence or to profess a lack of knowledge of the precise facts. The Respondent submitted that this indicated that their support for the Applicant was based on an underappreciation of the nature of the Applicant’s crimes.  I do not accept this submission.  I accept that these witnesses did endeavour to play down the seriousness of the Applicant’s conduct, but I am satisfied that their support for the Applicant was genuine and not predicated on a misunderstanding of the nature of his conduct.  I give no weight to the evidence of these witnesses as to the nature and circumstances of the offences but I do give weight to their evidence of family and community support for the Applicant’s return to the community.

    [31] Applicant’s wife, Applicant’s father-in-law, Mr X, Applicant’s brother-in-law, Mr Y and Mrs Z.

  32. I am satisfied that this evidence also establishes that the Applicant has good relations with wife and child, is supported by his extended family and has the support of members of the Alawite community.

    CONCLUSION

  33. The Applicant’s crimes were serious and violent and as Brennan J noted in Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs[32]:

    “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 acceptable level of risk”.

    [32] (1977) 1 ALD 98 at 100 as cited in WKCG v Minister for Immigration and Citizenship [2009] AATA 512.

  34. I have considered the position of this Applicant and his particular circumstances and I find that the evidence establishes that:

    ·the Applicant’s offences, while violent and serious, arose from an isolated event and were not part of a pattern of offending;

    ·the Applicant has shown genuine remorse and accepted responsibility for his actions;

    ·the Applicant has consistently been assessed by responsible authorities as a low risk of re-offending;

    ·the Applicant has been assessed by a clinical psychologist as being at the lowest possible level of risk of re-offending;

    ·it is unlikely that the Applicant will come into conflict with the victims of his criminal conduct;

    ·the Applicant has addressed anger management issues and developed strategies for avoiding conflict; and

    ·the Applicant has the support of his partner, extended family and members of the community.

  35. I am comfortably satisfied that these conclusions provide reasonable grounds for finding that the Applicant, having been convicted of a particularly serious crime, is not a danger to the Australian community. 

    DECISION

  36. The Tribunal sets aside the decision under review in respect of s.36(1C)(b) of the Act and remits the application for a Permanent Protection (Class XA) visa for reconsideration by the Minister with the direction that the Applicant satisfies the criterion in s. 36(1C)(b) of the Act and is not a danger to the Australian community.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member R. West

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

Associate

Dated: 26 June 2018

Date(s) of hearing: 16 and 27 April 2018
Counsel for the Applicant: Mr N Wood
Solicitors for the Applicant: Clothier Anderson
Counsel for the Respondent: Mr C McDermott
Solicitors for the Respondent: Australian Government Solicitor

Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

  • Statutory Interpretation

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Statutory Construction

  • Natural Justice

  • Remedies

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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WKCG v Minister for Immigration and Citizenship [2009] AATA 512
A v Minister for Immigration & Multicultural Affairs [1999] FCA 227
Briginshaw v Briginshaw [1938] HCA 34