TDPG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 503
•15 March 2021
TDPG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 503 (15 March 2021)
Division:GENERAL DIVISION
File Number: 2019/6952
Re:TDPG
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:15 March 2021
Place:Perth
The decision of the delegate of the Respondent made on 21 October 2019 to refuse the Applicant a Protection (subclass 866) visa under s 65 of the Migration Act 1958 (Cth) is affirmed.
......[SGD]..................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – refusal to grant a Protection visa – Australia has protection obligations to the Applicant – Applicant convicted by final judgment of a particularly serious crime – whether Applicant is a danger to the Australian community – Applicant is a 33-year-old man who arrived in Australia in 2006 on a refugee visa – violent offending – alcohol-related offending – Applicant an unacceptable risk – reviewable decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Migration Act 1958 (Cth) – ss 5, 5M, 36(1C), 36(1C)(b), 47, 65, 65(1)(b), 499, 500(1)(c)(i), 501, 501(3A)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
CASES
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
BKS18 v Minister for Home Affairs [2018] FCA 1731
DOB18 v Minister for Home Affairs [2019] FCAFC 63
HSCK and Minister for Home Affairs [2019] AATA 4392
LKQD and Minister for Immigration and Border Protection [2018] AATA 2710
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
RWDX and Minister for Home Affairs [2019] AATA 123
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148
WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434
SECONDARY MATERIALS
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) – arts 33, 33(2)
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
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) – sch 5, pt 2, item 9
The Refugee Law Guidelines, Department of Home Affairs, 1 July 2017 – ch 14
REASONS FOR DECISION
Deputy President Boyle
15 March 2021
THE APPLICATION
This is an application for the review of a decision of a delegate of the Respondent made on 21 October 2019 to refuse the Applicant a Protection (subclass 866) 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.[1]
[1] R1, T19/226.
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.[2] 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.[3]
[2] Applicant’s SFIC para 3.
[3] Applicant’s SFIC para 4; counsel’s opening submissions (transcript at 3); counsel’s closing submissions (transcript at 52).
BACKGROUND
The Applicant is a 33-year-old citizen of South Sudan. He arrived in Australia on 12 April 2006 as the holder of a Class XB Subclass 200 Refugee visa. The applicant was 18 years old at the time of arrival in Australia and has remained in Australia ever since.
The Applicant has a significant criminal record. He started offending within six months of arriving in Australia. The Applicant’s full criminal record is set out in the Annexure.
In 2011 the Applicant was convicted of a number of offences (disorderly behaviour, breach of bail, obstructing public officers (two counts), breach of community release order (seven counts), breach of suspended sentence (four counts), carrying an article with intent to cause fear and damaging property) and sentenced to terms of imprisonment totalling 25 months.[4]
[4] R1, T4/55–6; T5/93–4.
The Applicant was considered for visa cancellation in 2011 and was formally warned by letter dated 17 October 2011 that cancellation of his visa may be reconsidered if he were to commit any further offence and that disregard of the warning would weigh heavily against the Applicant if his case were to be reconsidered.[5] The Applicant acknowledged receipt of that warning letter on 1 November 2011.[6]
[5] R1, T3; T4/83–4.
[6] R1, T4/86.
The Applicant applied for citizenship in 2012 but his application was unsuccessful.
On 13 April 2013 the Applicant committed the offence of grievous bodily harm and was remanded in custody. In September 2013 the Applicant assaulted a fellow inmate at Hakea prison.[7]
[7] Applicant’s SFIC para 13.
On 24 June 2014 the Applicant was convicted in the District Court of Western Australia of grievous bodily harm and unlawful assault causing bodily harm in circumstances of aggravation for which he was sentenced, respectively, to six years and 12 months imprisonment (concurrent).
On 11 June 2015 the Applicant’s visa was cancelled by a delegate of the Respondent under s 501(3A) of the Act as the Applicant had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment on a full-time basis. The Applicant sought revocation of the visa cancellation. On 19 October 2017 the Assistant Minister decided to not revoke the cancellation.
The Applicant unsuccessfully sought judicial review of the decision not to revoke the cancellation of the visa in the Federal Court of Australia (the Federal Court). On 13 November 2018 Barker J dismissed the application for an extension of time to apply for judicial review of the decision.[8] The Applicant appealed this decision to the Full Court of the Federal Court but abandoned the appeal on 31 January 2019.
[8] BKS18 v Minister for Home Affairs [2018] FCA 1731.
The Applicant applied for a Protection (subclass 866) visa on 29 April 2019. The application for the protection visa was refused by a delegate of the Respondent on 21 October 2019. In his decision 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, however, found that the Applicant was ineligible for the grant of a protection visa as the delegate found that the Applicant had been convicted by a final judgment of a particularly serious crime and is a danger to the Australian community.
On 24 October 2019 the Applicant sought review of the decision to refuse the grant of the protection visa by the Administrative Appeals Tribunal.
LEGISLATIVE FRAMEWORK
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 under s 500(1)(c)(i) 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 Article 33(2) of the 1951 Convention Relating to the Status of Refugees (Refugees Convention).[9]
[9] See sch 5, pt 2, item 9 of the Amending Act and Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth).
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.
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.
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,[10] at Chapter 14, relevantly provide:
In considering s 36(1C)(b), each of the following elements should be considered:
·was there a crime?
·is the crime considered to be particularly serious?
·has there been conviction by a final judgement?
·does the person remain a danger to the community of Australia?
While the circumstances of a crime may indicate that the actions represent a danger to the community, decision makers must determine whether the person remains a danger to the community which may take into account any mitigating circumstances, remorse shown by the applicant and any punishments or rehabilitative corrections applied.
[10] 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).
THE HEARING
The application was heard on 10 December 2020. The Applicant was represented by Mr H Glenister and the Respondent was represented by Mr A Gerrard. The Applicant and Dr James McCue, clinical and forensic psychologist, gave evidence at the hearing. The following documents were admitted into evidence:
(a)Report of Dr McCue dated 6 September 2020 (Exhibit A1);
(b)Bundle of documents produced by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) received 6 January 2020 (the T-documents) (Exhibit R1); and
(c)Supplementary bundle of documents produced by the Respondent under s 37 of the AAT Act received 18 May 2020 (the Supplementary T-documents) (Exhibit R2).
THE EVIDENCE
The Applicant
The Applicant did not provide a written witness statement specifically for these proceedings. There is, however, within the T-documents, correspondence from or written on behalf of the Applicant in previous dealings with the Department and other government bodies which contain personal details that are potentially relevant to the present application.[11]
[11] Letter dated 26 September 2011 (R1, T4/81-82) requesting that his refugee visa not be cancelled; letter dated 29 June 2015 (R1, T6/98) requesting extension of time to appeal non-revocation of cancellation of visa; undated and unaddressed letter relating to “what happened on 5 August 2010” (R1, T8/105-108); email to Protection Assessment WA dated 29 May 2019 (R1, T18) relating to the application for a protection visa; submissions made on behalf of the Applicant by the Humanitarian Group in support of application for revocation of cancellation of visa under s 501(CA)(4) of the Act dated 31 March 2017 (R1, T9); application for protection visa dated 17 April 2019 (R1, T11).
The Applicant’s evidence at the hearing was as follows:
(a)When asked by Mr Glenister why he was not a threat to the Australian community, the Applicant stated:
One thing I can promise you is that I can never change my past, but I’ve learned through it. I’ve done whatever I could to change my life. I’ve done all the courses in here, in prison, when I was in prison. I haven’t committed any crime when I was doing those courses. The reason I believe that I’m not a risk, I’m a grown person right now. Even here. I told – I’ve teached (sic) a lot of young boy who I heal, especially young African, to respect the officer and to do good in life. I am not a risk because I have changed, and the reason I have changed (indistinct) evident. If I’m a risk to Australian community, I would be committed crime when I was in detention centre or when I was in prison, but I haven’t done anything here. I believe I’ve changed, and I believe that if given a chance I will never commit any crime. Back in the day I was young, but now I’m grown person. I have done whatever I could to change my life, but one thing I can promise you is the fact that I can never change my past. What I’ve done years ago, it was a mistake, I regret it, I’ve learned through it and I’ve work hard and that’s a lot of evidence to prove that I’ve changed my life. I am not a risk to community and I promise that I will never do any crime again and I will work hard to be the part of the community.[12]
[12] transcript at 9.
(Without alteration.)
(d)When asked by Mr Glenister what his plan was if he were to be allowed to stay, the Applicant’s response was:
My plan is to – to get a job. My plan is to – to make sure that the young African who are committed crime, I will make sure that I will work with them in my community not to follow the wrong road we’ve been follow for all these years. I wanted to change my community and I always talk with them, you know, the way I’ve been through, I don’t want this young generation to go through. I want to be the role model, but most importantly if I am given the chance, I will work hard and I will make sure that I never reoffend again.[13]
[13] Ibid at 10.
(e)His community (by which I understand to be the Sudanese community) would help get him a job labouring or in a factory, potentially in Gingin.[14]
[14] Ibid.
(f)His sisters and the community will support him. He has spoken to community leaders who have told him that they will write a letter of support and that they believed that the Applicant had changed.
(g)He has no family outside Australia. He has a younger brother and a younger sister in Western Australia and an older sister in Melbourne.
(h)He will live with his younger sister if he is allowed to stay in Australia. When asked by Mr Glenister how he knew this, his response was:
APPLICANT: Because last time I spoke with her, she told me that, “When you come outside you will live with me until you get a job and start working – until you start working and get a job so you can find your own place”
…
MR GLENISTER: So she told you recently that you could come and live with her, is that what you’re saying?
APPLICANT: Yes.[15]
[15] transcript at 11.
(i)He plans to be a leader of his community in the future.
(j)He has learnt that violence will not take him anywhere and that violence destroyed his life. He does not want violent people around him. He is proud of what he has done in prison and is a changed person.
(k)In prison he has been the subject of violence but has not retaliated. In one incident he was punched in the mouth and was bleeding but just walked away.
(l)He has hated being in prison and it has caused him to reconsider his life. He has changed to become a better person.
(m)In relation to drinking alcohol, he knows that his violent offending is associated with alcohol and that is why he has, since being in prison, undertaken violence and alcohol courses. He promises not to drink alcohol again and has not had a drink since 2013.
(n)He has not taken any drugs while he has been in prison. Even when he was outside prison, he did not take any drugs.
(o)In the Think First program in prison, the Applicant learnt how alcohol and drugs can destroy your life and how to stay away from violence, drugs and alcohol and become a better person.
(p)He also undertook the Pathways Program, which he thought was similar to the Think First program, and the VOTP (Violent Offender Treatment Program). His recollection of that program was that it talked a lot about violence, because violence is caused by drugs and how they react in your body and about how to avoid violence and drugs.
(q)The other program that the Applicant undertook while in prison (the Applicant could not initially remember what it was called) was a voluntary course that talked “about how to communicate and how to live with your family, in a relationship. So in the future I might marry, and I decided to do that to learn about how to live with your family and how to communicate with other people too”.[16]
(r)He had in the past fought with one girlfriend although he was not violent towards her.[17]
(s)One of the reasons that the Applicant had offended in the past was that he associated with other African boys. His evidence was:
… I don’t think I will be hanging out with them because I spent years in prison and none of them never ever come to visit me so there’s no need for that life change. Those days I was young. This day I want to focus on the real future and I want focus on, on improving my life. So there would be no need for me to hang around with them so there would be time for me to start a family and just look after my family and work hard to become a better person.[18]
(Errors original.)
(t)He has spent his time in prison writing reggae music which he wants to pursue after he gets out of detention.
(u)He believes that a lot of those who have been returned to South Sudan from western countries have been killed by the government. He has no family in South Sudan and if he is deported, he will be killed by the government which is killing his tribe. He knows that if he were to be given another chance and he committed further offences he would be sent back to South Sudan.
[16] transcript at 14.
[17] Ibid at 15.
[18] Ibid.
In cross-examination the Applicant’s evidence was as follows:
(a)He arrived in Australia in April 2006 and started offending shortly thereafter. His first conviction in October 2006 (disorderly behaviour in a public place) was for an incident at a Northbridge nightclub in August 2006 for which he received a community release order for six months.
(b)In the eight years after that offence he offended regularly.
(c)The Applicant was then taken to the series of convictions in July 2009 for unlawful wounding, unlawful damage, criminal damage, threats to injure, possess an article with intent to injure, carry an article with intent to injure and trespass for which the Applicant received a seven month term of imprisonment suspended for 12 months. The offence of carry an article with intent to injure occurred at Burswood on 9 March 2008. A series of questions was put to the Applicant as follows:
MR GERRARD: All right. Well then, just to be clear, you accept that you were involved in – with a number of your friends with assaulting a person on that occasion?
APPLICANT: Yes.
MR GERRARD: And that you and your friends punched and kicked that person?
APPLICANT: Yes.
MR GERRARD: And that he sustained injuries of bruising over his vocal chords, damage to his throat and bruising to his face?
APPLICANT: Yes.
MR GERRARD: And that fight ended when imitation firearm was produce by one of the victim’s friends but you ran after him and you were carrying an 80 centimetre by three centimetre metal bar wrapped in black PVC tape?
APPLICANT: Yes.
…
MR GERRARD: So you have accepted all of those facts, TDPG. One thing I want to know is why you were - - -?
APPLICANT: Yes, I do.
MR GERRARD: Why were you carrying an 80 centimetre metal bar?
APPLICANT: Because that day, the thing is, as – this is the reason why I said before, I can only wish to take everything back and I can only wish to (indistinct) only thing but with it I cannot do but I’m very sorry for doing that but I can never tell you the reason why I was doing that because that time I was, I was drunk that time that’s why I told you before that alcohol is not really good enough – it’s the only thing that destroyed my life and I wish I can rewind the time back and make it not happen again.
…
MR GERRARD: You had obviously put some thought into this, this was a metal bar wrapped in PVC tape. Did you carry this around often?
APPLICANT: Um, I don’t carry that often but when the fight broke down and I seen it, I grab it that day.[19]
[19] transcript at 18–19; the facts put to the Applicant were taken from the Western Australian Police Statement of Material Facts (R2, ST5/452).
(d)Counsel for the Respondent then took the Applicant to an incident four and half months later on 26 July 2008 and to the Statement of Material Facts relating to that incident.[20] The same facts are also set out briefly in the sentencing remarks of Braddock DCJ made on 23 June 2014.[21] The Applicant’s evidence in cross-examination was:
[20] R2, ST5/448.
[21] R1, T4/77.
MR GERRARD: This was an incident where you had a confrontation with one of your friends and then you went outside and you went back inside and grabbed a 14 centimetre knife from the kitchen table and chased the person; do you remember that incident?
APPLICANT: I remember that because it’s in the paper.
MR GERRARD: So you don’t remember it happening but you have read the material and you agree that it happened?
APPLICANT: I remember it because I was charged with it and I remember we were drinking and I remembered arguing with him.
MR GERRARD: Do you remember stabbing him five times?
APPLICANT: Yes, I do.
MR GERRARD: And it is said that the victim required surgery for his wounds, is that something that you agree with?
APPLICANT: Yes.[22]
[22] transcript at 20.
(e)The Applicant was then taken to an incident on 24 August 2008 involving unlawful damage and possession of an article with intent to injure.[23] The cross-examinations was as follows:
[23] Statement of Material Facts (R2, ST5/445); Court of Appeal judgment (R2, ST1/274) at [12].
MR GERRARD: … you had an argument with your girlfriend on that date and that you became angry with her and walked outside to the back yard and collected a one metre piece of wood, that you came back inside the house with the wood in your hand and you raised that wood above his head and you were waving it at the victim in that matter who – I think his name was Mr (indistinct)?-APPLICANT: Yes.
MR GERRARD: And then, that person tackled you and took the wood away from you and you went into the kitchen and took a knife from a drawer and ran towards him with the knife and he used a dining room chair to defend himself and managed to get the knife away from you. Then you ran back to the kitchen and tried to take another knife and you were tackled again by the person and then you collected a chair from the sitting room and used it to smash the television cabinet?
APPLICANT: Yes.
…
MR GERRARD: And again, this was to do with your alcohol use?
APPLICANT: Yes.[24]
[24] transcript at 20.
(f)Counsel then took the Applicant to an incident on 30 March 2009 where the Applicant was trespassing and refusing to leave his sister’s house. Police were called.[25] The Applicant did not contest the Statement of Material Facts which stated that the Applicant was with a large group of his friends in his sister’s house and was refusing to leave. The Applicant’s sister had been forced out of the house and told to go and sleep on the streets. The Applicant’s evidence on that incident was:
[25] Statement of Material Facts (R2, ST5/441).
… I can only say that I feel sorry for what happened and I wish I shouldn’t have done that. As you said that, you know that I’m ashamed, of course I am ashamed of everything that happened and I wish I could take it back which I can never do. So, but I have to make sure in the future nothing like this will happen again in the future because it really hurt.[26]
[26] transcript at 21.
(g)On that evening the Applicant and his friends also smashed windows in his sister’s house and caused damage to a car.[27] The Applicant admitted that the facts as set out in the Statement of Material Facts were correct.
[27] Statement of Material Facts (R2, ST5/437); sentencing remarks of Groves DCJ (R2, ST1/261).
(h)The Applicant admitted that on 9 May 2009 he went to the house of a person called [omitted] and that he picked up a television and threw it on the floor which resulted in the criminal damage charge.[28] He also admitted that he had become more aggressive to the person and said, “be assured, I am going to kill you when I see you,” and that the police had to remove him from the property.[29]
[28] Statement of Material Facts (R2, ST5/429).
[29] transcript at 22.
(i)The day after that incident the Applicant was arrested by police for trespass at another property. The police searched him and he was found to be carrying four kitchen knives on his person. He was then asked by Mr Gerrard whether he used to “carry knives around a lot” to which he responded, “[y]eah, sometimes when I’m drunk because I don’t trust those (indistinct). So yeah, I carry knife [sic] a lot, yeah.”[30]
[30] Ibid.
(j)On 5 August 2010 the Applicant was convicted of the incident of riotous assembly and causing damage to his sister’s house on 30 March and the setting of a fire on that date. Groves DCJ, in sentencing the Applicant, noted that the Applicant had spent almost a year in custody at that point in time and said that he hoped that would be a lesson to him.[31] In the Tribunal hearing, the Applicant was asked whether he remembered spending that much time in prison and whether he remembered the judge saying that he hoped that that had been a lesson to him. The Applicant’s evidence was that he remembered the judge saying that, but conceded that, in fact, it had not been a lesson to him because three weeks later, on 24 August 2009, he reoffended by obstructing police and failing to give police personal details.[32] He conceded that on that occasion he was stopped by police because he was walking in an intoxicated state carrying an open bottle of alcohol and that he became aggressive and abusive towards the police.[33] He ran at the police and behaved in an intimidatory and aggressive manner and pushed past a police officer with his shoulder before being warned by the police officer that she would use her taser on him.[34]
[31] R2, ST1/262.
[32] Statement of Material Facts (R2, ST5/424).
[33] transcript at 22–23.
[34] Ibid.
(k)Four days later, on 28 August 2009, the Applicant was stopped and searched by the public transport authority officers. He was found to be carrying a 27-centimetre-long knife in his pants. He was charged with carrying an article with intent to cause fear. The Applicant did not contest the facts put to him by Mr Gerrard which gave rise to that conviction.[35]
[35] transcript at 23.
(l)The Applicant agreed that many of his offences were alcohol related. His evidence was that he started drinking alcohol with his friends from Africa about three months after he arrived in Australia.
(m)It was pointed out to the Applicant that when he was being sentenced on several offences on 15 April 2011, the sentencing judge commented that departmental records indicated that the Applicant had acknowledged that he became aggressive when drunk and that many of his financial difficulties had been caused by alcohol abuse.[36] The judge also noted that those records indicated that the Applicant had “previously acknowledged smoking cannabis, at least monthly”. The Applicant agreed that that was correct.
[36] R1, T4/61.
(n)It was pointed out to the Applicant in cross-examination that the statement of his having smoked cannabis monthly, contradicted what the Applicant had told his counsel in evidence-in-chief. The following exchange took place:
MR GERRARD: But you said to Mr Glenister that you didn’t use drugs, even when you were outside. Do you not consider cannabis a drug?
APPLICANT: No, I don’t consider it a drug because when I’m drunk then the boys smoking it I say, let me have a puff. So it’s not my thing but alcohol, yes.
MR GERRARD: So when you said to Mr Glenister that you didn’t use drugs, that wasn’t correct?
APPLICANT: Um, I don’t see – I don’t see, ganja as a drug because ganja you can never committed a crime (indistinct). You can never committed a crime. I never seen anyone going to court because I committed this crime because I was high but I don’t smoke it often. So I don’t consider this as a drug and it’s not something that I smoke a lot and I will never smoke it again too.[37]
[37] transcript at 24.
(o)His evidence was that he had not smoked cannabis since he went to prison the last time.
(p)The Applicant was then cross-examined on his submissions to the Department in September 2011 not to cancel his visa.[38] In those submissions the Applicant had made the following statement which was put to him:
[38] R1, T4/81-82.
For the last ten months of being incarcerated, I had realised how much trouble I had got myself into. I would like to let you know that I have made a strong commitment to myself to become a better person. My prison record for the last ten months, I have no misconduct charge or (LOP) loss of privilege and I have no charge pending. I’m remorseful for my action in the past to which I have leaded myself to be incarcerated.
If by chance of your cancellation of my refugee visa I will be send back to my village in Sudan, there will be no life or future for me there because I have no close family members there in Sudan.
About two months ago I saw a documentary on Foreign Correspondent or Late Line on T.V. People in my village are still being killed by other tribes. As I had stated in the yellow form; that I am afraid that if by chance you send me back to my village in Sudan, the elders there might send me to fight off these attacker’s to which other tribes have killed and attacked my village and I might be kill.
I am willing to participate in rehabilitation programs/courses in that the (DCS) had set for me. I have no intention of committing any further criminal offences when I get release. I have a strong family support to set me on the right track. I’m willing to seek employment as soon as I get release from prison. I see myself now, not a significant risk to the community when I get release…
(q)The following exchange then occurred:
MR GERRARD: In that statement you were aware that the cancellation of your visa would mean that you would go back to Sudan, weren’t you?
APPLICANT: Yes.
MR GERRARD: You were aware then of what the situation in Sudan was?
APPLICANT: I was aware, yes.
MR GERRARD: You claimed that you were remorseful and that you were committed to rehabilitation and had a supportive family network?
APPLICANT: Yes.
MR GERRARD: You also asked the Minister to take into account that you had not offended whilst you were incarcerated?
APPLICANT: Yes.
MR GERRARD: These are all things you are saying now, TDPG?
APPLICANT: Yeah.
MR GERRARD: That’s almost word for word what you said to Mr Glenister when he asked you why the tribunal shouldn’t think that you’re a danger now?
APPLICANT: Yes.
…
MR GERRARD: So you persuaded the Minister not to cancel your visa and you acknowledge that warning on 1 November 2011…?
APPLICANT: Yes.
MR GERRARD: So, you had made those representations. The same representations you are making today. You persuaded the Minister not to cancel your visa but you went on to commit further offences?
APPLICANT: Yes.[39]
[39] transcript at 25–26.
(r)Asked to explain why the Tribunal should believe the Applicant now, the Applicant said that he was young, still a teenager at that time (it is not clear whether this is a reference to the time when he made the statement or when he next offended) and he had not done the courses that he has since undertaken. I note that the Applicant’s claim that he was a teenager is not correct, either at the time of his making the statement (when he was nearly 24) or at the time of his next offending (when he was 25). He further claimed that at the time he committed the offences he was “new to Australia” and did not “know the Australian law very well. That’s why I keep re-offending, re-offending, re-offending”.[40]
[40] Ibid at 26.
(s)Counsel’s cross-examination continued as follows:
MR GERRARD: TDPG, you knew the Australian law well enough to know that your offences were criminal offences by this stage, didn’t you?
APPLICANT: Yeah, I do.
MR GERRARD: You knew that to assault a person in the way that you had assaulted them in the past was a criminal offence; didn’t you?
APPLICANT: I do.
MR GERRARD: You did know at that time that carrying weapons like you did, was unlawful, didn’t you?
APPLICANT: Yeah, I do.
MR GERRARD: So you’re not seriously suggesting to the tribunal that a reason for your offences were that you didn’t know the Australian law that well?
APPLICANT: Well, I’m violence is something that we grew up and violence is something that is just like a part of our culture, it’s like survival back in the day. So when I keep re-offending, re-offending is because I was working with people that we came from the same country and I have no-one to work with because I don’t speak English that time but I knew that every crime I have done sir, is a crime so I know that it’s a crime but I keep re-offending and re-offending because I keep working with the same people. I will tell you that I did know that it was a crime, I (indistinct) know the Australian law. I do know the Australian law at that time but to keep myself away from re-offending is very hard because I keep going back to the same people. There’s no other people that I should hang around with. So, right now, seeing I’ve been in, in prison for many years. So, I go to school, I know that I have learned how to avoid Australian law from all these years in prison. In six years in prison. It was a big chunk of my life that I’ve been taken away. So, for me, I wouldn’t tell you that back in the day I didn’t know Australian law. I know that everything I do is a crime but I didn’t know how serious is it because I keep going back to the same people and drink alcohol.[41]
[41] transcript at 26–27.
(t)The Applicant was then cross-examined on his statement to his counsel in examination-in-chief that he had never been violent towards his girlfriend (see [28](h) above). The following was put to him:
MR GERRARD: Well, I’m having trouble reconciling that with what you said to Dr McCue. At the bottom of p.3 of his report, Dr McCue says, ‘TDPG acknowledged that there was physical violence in his relationships. He explained that in his culture it is acceptable for a man to hit his female partner, particularly if she disrespects him or hits him’?
APPLICANT: Yeah.
MR GERRARD: So you were violent in your relationships with women?
APPLICANT: Yeah, I was violent, I didn’t deny it (indistinct) before. I said I had a fight with my girlfriend and that’s why I was doing a positive communication and relationship to know that it’s not good to do it in the future. I didn’t deny it before. I said that.[42]
[42] transcript at 27–28.
(u)The Applicant’s evidence-in-chief had been:
MR GLENISTER: You said that you fought with your girlfriend?
APPLICANT: Yes.
MR GLENISTER: Is it only one girlfriend that you fought with or several?
APPLICANT: Yeah, one girlfriend. We were both drinking alcohol.
MR GLENISTER: And by ‘fight’ do you mean you were violent towards her?
APPLICANT: No, I wasn’t that violent toward her but we did fight a little bit, yeah.[43]
[43] Ibid at 15.
(v)The Applicant was then taken to an assault in December 2012 that he committed in Victoria against a woman described as his girlfriend (the Applicant had been released from prison on 6 October 2012).[44] Mr Gerrard read from the Victoria Police Summary of Charges[45] as follows:
[44] R2, ST6/514.
[45] R2, ST5/349.
MR GERRARD: And that you were demanding for her to come out of the room and speak to you. Do you remember this incident?
APPLICANT: Yes.
MR GERRARD: And that she agreed to speak to you?
APPLICANT: Yeah.
MR GERRARD: And I think you said somewhere, I can’t see it here but you said that she had scratched you, is that right?
APPLICANT: Yes.
MR GERRARD: Then it says, ‘The accused then used his fist to punch the victim to the face an unknown number of times. The victims [sic] screams were heard by other persons inside the house who attempted to open the door to the room but were unable to. Police were called, who gained entry to the room to find the victim was unconscious on the floor and the accused standing over her’?
APPLICANT: Yes.
MR GERRARD: ‘An ambulance arrived and conveyed the still unconscious victim to Monash Hospital where she was treated for a badly bruised and swollen jaw and cheek. The victim has no recollection of what occurred between entering her room with the accused to waking up in hospital. The accused was arrested at the scene and conveyed to the Dandenong Police Station for interview. The accused stated in the interview that the victim and he were sexual partners and that if the victim left the room the other guys would talk bad about him. The accused stated that after he locked the door the victim asked him why he was acting so aggressively and scratched him in the face in an attempt to leave. The accused made full admissions to responding to the scratch by using his fist to punch the victim’s face an unknown number of times which caused the victim to lose consciousness.’ That all happened?
APPLICANT: Yeah. Yeah, it happened, yeah.[46]
[46] transcript at 28–29.
(w)The next offence to which the Applicant was taken was the assault occasioning bodily harm committed on 25 February 2013. The assault was against a 24-year-old female with whom the Applicant was in a domestic relationship. Counsel for the Respondent read the Statement of Material Facts[47] to the Applicant:
[47] R2, ST5/411.
MR GERRARD: ‘The accused punched the victim once in the left hand side of the face and mouth with a closed right fist as he was standing in the doorway of Unit 9 before entering the hallway and punching the victim another two times in the face and mouth again using a closed fist. The force used during these punches caused the complainant’s head to jolt back suddenly and as a result she became noticeably unsteady on her feet’?
APPLICANT: Yes.
MR GERRARD: ‘The victim leant on the wall in the hallway in order to steady herself as the accused continued to yell and gesture towards her. The accused later took the victim by the arm and led her back into the bedroom where they remained for a number of hours. About 12.40 am the following morning, once the accused had fallen asleep, the victim exited the room and fled from the Perth hostel as she called police for assistance and reported the incident. The incident was captured on internal CCTV footage. As a result of this incident, the victim was conveyed to the Royal Perth Hospital for medical treatment. The victim received bruising to the left-hand side of the face. Loosening of two of her teeth as well as laceration to the left upper lip which required stitches.’ So, you remember that happening?
APPLICANT: Yeah, I do remember that, yeah.
MR GERRARD: Again, this is a significant violent offence committed against a partner, you’d agree with that?
APPLICANT: Yeah, 100 per cent, yeah.[48]
[48] transcript at 31–32.
(x)The Applicant was then cross-examined on the most serious of his offences, the ones for which he received the 12 month and six-year terms of imprisonment:
MR GERRARD: Then we come to your most serious conviction arising out of the attack on Mr [omitted] You remember those don’t you?
APPLICANT: Yep. Yeah, I do.
MR GERRARD: You were initially charged with assault which occurred on 10 April and 13 April, but you were acquitted of the first of the charge arising out of the first instance, is that correct?
APPLICANT: Yes.
MR GERRARD: But you were convicted of the offence against Mr [omitted] which occurred on 13 April 2013?
APPLICANT: Yes.
MR GERRARD: He was a friend of yours?
APPLICANT: Yeah.
…
MR GERRARD: He had been in hospital that day, is that from the previous incident?
APPLICANT: Yes.
…
APPLICANT: Yeah, we were drinking then we end up fighting.
MR GERRARD: And you assaulted him, did you hit him?
APPLICANT: Yeah, and he - - -
MR GERRARD: Did you punch him with your fists or - - -?
APPLICANT: It involved fire. Nah, I set him on fire.
MR GERRARD: But you’d assaulted him before you set him on fire hadn’t you?
APPLICANT: Yeah.
MR GERRARD: How did you assault him?
APPLICANT: We had fight, I hit him with a stick.
MR GERRARD: You hit him with a stick?
APPLICANT: Yeah.
MR GERRARD: And then you took him into the back garden area?
APPLICANT: Yeah.
MR GERRARD: And you sprayed some sort of liquid on him, some accelerant (indistinct words)?
APPLICANT: Yes.
MR GERRARD: And you set fire to him?
APPLICANT: Yes.
MR GERRARD: So, he came to but then he fell unconscious..
APPLICANT: Yes.
ME GERRARD: And you just left him?
APPLICANT: Yep. Yes.
…
MR GERRARD: So, you have no explanation other than you’d been drinking for assaulting a person with a stick, and then setting fire to them, and then leaving them when they’re unconscious?
APPLICANT: Yes. And it was a bad thing to do. The worse thing I have done in that – that day because I’m well aware I should have called ambulance for him, but I just walk away. And I don’t like it, it’s not good thing to do.
MR GERRARD: You’re aware of how serious the injuries were to Mr [omitted]?
APPLICANT: I was very aware of it, yes. If someone is conscious that means that they – the injury is so – it’s so horrible, yeah. I’m very aware of it. And that day I acted like a monster, you know, I just walk away, I should’ve just called ambulance. But I didn’t do it.[49]
[49] transcript at 31–33.
(y)The Applicant pleaded not guilty to the charges that arose out of that incident but was convicted by a jury. He was then asked when he accepted that he was guilty of these offences. His answer was difficult to follow but appears to be to the effect that he accepted guilt around the time that he was charged, or potentially once he was convicted.[50] Following that answer Mr Gerrard took the Applicant to the Violent Offender Treatment Program completion report dated 22 February 2017.[51] The Applicant’s evidence was as follows:
[50] Ibid at 33.
[51] R2, ST6/544–549.
MR GERRARD: On the second page of that and the second paragraph it talks about all of the offences or all of the offences you were charged with. At the end it says:
‘TDPG denies the offences stating that he had been drinking with the victim earlier that day and did not understand why the victim would make the allegation’
So, you sound quite remorseful now?
APPLICANT: Yeah.
MR GERRARD: But this is only three years ago coming up to four years ago, where you - - -?
APPLICANT: Yes.
MR GERRARD: - - - are part of the Violent Offending Treatment Program you’re still denying that you committed this offence?
APPLICANT: That is something terrible you do in life that it takes you more than ten years, or even 20 years, or even the time you die, that you regret it in your life. It’s something that you’re not proud to talk about it, it’s something that you couldn’t believe – like, how did this happen like that because this charges here is very serious charges, they’re not charges that I’m very proud to talk about. So, it’s not that I deny it, it’s a fact that I did it, I’ve been charged with it and I accept that. So, it’s not something that I could talk about it because it’s not normal thing, like, if you seen – if you seen human being when they have done something really terrible they – it’s – because when I talk about it it brings back all the memories. I rather just – because – to be honest with you I feel like a monster and it’s not – it’s not – the way I acted I acted like I’m not a human being and I’m not proud to talk about it. So, it really hurts more than anything - - -
…
MR GERRARD: I’m trying to work out when it was that you accepted that you did this because you pleaded not guilty, you appealed although that was against the sentence not against the conviction. But here you are in 2017 telling the Violent Offenders Treatment Program that you denied the offences, you didn’t know why the victim would make the allegations. And then in 2017 when you were considered for parole the Prison’s Review Board notes that it was concerned that you maintained your innocence in relation to the grievous bodily harm offences, that’s mid-2017?
APPLICANT: M’mm.
MR GERRARD: Mid-2017 you hadn’t accepted responsibility for this. 2018, mid-2018 this is only a year-and-a-half ago, the Prison’s Review Board again considered your circumstances and said that all of the other circumstances it referred to in 2017 was the same. So, presumably that means that you hadn’t accepted you were guilty at that point. When did you accept that you were guilty; when did you accept that you had done these things because it’s not clear from the document, TDPG?
APPLICANT: I accepted that when I was denied parole. The reason I was denied parole is because I did not – I didn’t – I wasn’t open about this when I was doing VOTP, but when I was denied parole then I accepted it that year, I committed this crime. Because the first thing is I didn’t even go to court, when I go to court I – I – I said that I wasn’t guilty, you know. But years later I admit that there – I done that crime.
MR GERRARD: After so, two years ago, a year-and-a-half ago that’s when you admitted it?
APPLICANT: Yeah. [52]
[52] transcript at 34–5.
(z)Some of the remarks made by Braddock DCJ in sentencing the Applicant on 23 June 2014 on the grievous bodily harm conviction[53] were then put to the Applicant by Mr Gerrard:
[53] R1, T4/73–80.
MR GERRARD: Going back to the sentencing do you remember that you saw someone for a (indistinct words) presentence report?
APPLICANT: Yeah.
MR GERRARD: And the judge refers to that in [her] sentencing remarks – at page 78 for the tribunal’s benefit – and the author of that report says that you deny, and justify, and minimise your perpetration of violence and blame others. You are focused on yourself and she concludes that you have a high level of risk, that it’s a risk of future violence, and a high level (indistinct). That you are caught inside negative attitudes, impulsivity, difficulty managing relationships within your community, and substance abuse. Do you agree that at that point that the point you were sentenced - - -?
APPLICANT: Yeah.
…
MR GERRARD: Do you agree that at that time that was correct, you were a high risk?
APPLICANT: Yeah, yeah, I agree, yeah, at that time, yeah.
(aa)It was then put to the Applicant by Mr Gerrard that the parole board refused the Applicant’s application for parole in March 2017 because the Applicant’s “release would present an unacceptable risk to the safety of the community”.[54] The following exchange occurred:
[54] R1, T7/103.
MR GERRARD: Now, this decision was made after you had completed Think First, Pathways, and Violent Offending Treatment Programs?
APPLICANT: Yes.
MR GERRARD: The Prison’s Review Board took that into consideration but still they found that you were an unacceptable risk?
APPLICANT: M’mm.
MR GERRARD: They said that you developed...very few strategies to address those outstanding needs if release [sic] on parole. They were…concerned that you maintained your innocence in relation to the grievous bodily harm offence, which adversely impacts your ability to fully address your outstanding needs. And the Prison’s Review Board found that your extensive criminal history including violence suggested a high risk of reoffending and they noted that you had poor [sic] … to prior supervision orders, that you didn’t have sufficient [sic] … in place. And that you had unmet … treatment needs. Do you agree?
APPLICANT: M’mm.
MR GERRARD: Or do you want to comment on any of the findings of the Prison’s Review Board, do you agree with all of those findings?
APPLICANT: Yeah, I agree, yeah.
…
MR GERRARD: So, that was in March 2017, TDPG. You were then denied release again on 22 May 2018 – that appears at 338 of the T documents and that’s a shorter decision. The Prisoner’s Review Board in May 2018 also found that you were an unacceptable risk to the safety of the community and that the reasons it gave in the 2017 report remained (indistinct) they still applied. So, do you think that anything had changed between being denied parole in 2017 and being denied parole in May 2018?
APPLICANT: Yeah, I can tell you a little bit about that, it’s worse because I’m – I’m high risk to the community because parole board – I did say that I didn’t – I wasn’t open about it the – they (indistinct), so that’s when – that’s when they believed that I’m a high risk to the community. But it wasn’t because I’m a high risk to the community it was because I was open about the charges at that time. And after that I been open with that charge...
…
MR GERRARD: So again I will ask you because I don’t think we have got an answer from you yet, TDPG, when did you accept that you were guilty of these offences? Because you hadn’t, at the time of committing the – at the time of completing the violence, offending treatment program, [sic] that’s in the beginning of 2017, you hadn’t at the time of the Prisoner’s Review Board Report in March 2017, it doesn’t appear that you had at the time of the second Prisoner’s Review Board decision in May 2018. When did you accept and start telling people that you had committed these offences against Mr [omitted]?
APPLICANT: I accept that after I was denied parole, so accept that the second time when I applied for parole, that’s when I accept that I have done those crimes. I have committed that crime. That’s when I was open because they told me you wasn’t open but I realised that yeah, I wasn’t open in the first place but not because I didn’t do that but I have done that crime and I apologise for it. So that’s when they still deny me parole.[55]
[55] transcript at 36–39.
Dr McCue
Dr McCue provided a psychological risk assessment report dated 6 September 2020 (A1). Dr McCue reported the following:
(a)He had interviewed the Applicant and his sister for the purposes of preparing the report.
(b)He set out the Applicant’s background and family history including the Applicant’s exposure to death and famine associated with the Sudanese civil war and noted that his father used corporal punishment on him and that “beating was a way of life”. His father was killed in the civil war in Sudan in 1997.
(c)The Applicant’s sister had said that she had observed a change when the Applicant arrived in Australia and started hanging around with “bad influence”. He started drinking and fighting. The Applicant’s sister reported that the Applicant had been threatening towards her. She commented that “we were raised that violence is okay… a husband is allowed to beat their wife”.
(d)The Applicant’s sister said that the Applicant maintained his friendships with antisocial peers up until his most recent incarceration but noted that he no longer associated with his antisocial peers because “most of them are in jail now”.
(e)The Applicant acknowledged that there was physical violence in his relationships. He explained that in his culture it is acceptable for a man to hit his female partner, particularly if she disrespects him or hits him. He also reported to Dr McCue that his use of alcohol increased the violence he perpetrated in his romantic relationships, which was also reflected in comments made by his sister. The Applicant offered comments that indicated he is aware violence against women is unacceptable in Australia.
(f)The Applicant reported engaging in regular and problematic alcohol use, as well as some cannabis use. He started drinking alcohol when he arrived in Australia and his alcohol use increased over time.
(g)Stated that it was his opinion that at the time of his offending the Applicant likely met the criteria for Alcohol Use Disorder according to the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Currently, it is reasonable to suggest that the Applicant is in sustained remission as he has not met the criteria to diagnose Alcohol Use Disorder for a period of at least 12 months. This is the result of him being in a controlled environment (prison and detention) where access to alcohol is restricted.
(h)Dr McCue set out the Applicant’s offending history in general terms. He reported that the Applicant explained that his violent offending was influenced by the company he was keeping and his alcohol use at the time of the offences. He said that his violent behaviour has often been perpetrated in the company of other Sudanese males and he believed that his behaviour has been encouraged by them. He noted that in his culture, it is important for males to demonstrate their dominance and to stand up for themselves. He stated “I was raised not to bow down. It brings shame to the family. If someone says something, you say something back. If they want to fight, you fight. I was told to fight people, not kill people, but fight”. He explained that in his culture it is acceptable for men to hit women, particularly in the context of a relationship.
(i)Dr McCue referred to the treatment programs that the Applicant had undertaken, in particular the Think First program, the Pathways program and the Violent Offender Treatment Program. All of the program completion reports noted gains. Dr McCue brought attention to the comment on the VOTP completion report that “Although he reported he was able to use alternative thinking in real life situations to stop him being violent, and he was able to identify how impulsivity related to his use of violence, he did not discuss skills that he would use to stop his impulsivity in the future”. Each of the reports acknowledged that the Applicant had not had the opportunity to demonstrate his treatment gains in the community and outside of a controlled environment.
Risk Assessment and Mitigation
(j)Dr McCue assessed the Applicant’s risk of future violence using the Historical Clinical Risk Management-20, Version 3 (the HCR-20V3). The assessment utilises historical items related to his risk of future violent offending, include a history of violence (high relevance), a history of antisocial behaviours (high relevance), a history of relationship problems (high relevance), a history of substance use (alcohol) problems (high relevance), a history of traumatic experiences (high relevance), a history of violent attitudes (high relevance), and a partial presence of a history of treatment or supervision response problems (high relevance).
(k)The assessment also uses clinical items. The only factors that were considered partially present was treatment or supervision response problems (moderate relevance). This is due to his breaching a bail condition and conditional release order previously.
(l)The third element of this assessment was the risk items. Of most relevance for the Applicant were a partial presence of issues related to professional services and plans (moderate relevance), partial presence of issues with his future living situation (moderate relevance), and partial presence of issues associated with treatment or supervision response (moderate relevance). The Applicant presented as motivated to engage in future professional treatment and support, however, he has not identified specific services which would be of benefit to him. Similarly, his plans for future accommodation also lack some detail.
(m)Dr McCue identified specific scenarios where risk of violence is likely to be elevated. The first of these is where the Applicant experiences frustration or conflict with another Sudanese male, and he has consumed alcohol, and he fails to use the strategies obtained through his custodial treatment programs, he may feel justified to act violently. The second scenario is where he experiences conflict with a female he emotionally or romantically close with, and he has consumed alcohol, and he fails to use the strategies obtained through his custodial treatment programs, he may feel justified to act violently.
(n)His risk of future violent offending can be mitigated by him:
(i)abstaining from alcohol;
(ii)avoiding antisocial peers, particularly those who are also males within the Sudanese community in Perth;
(iii)connecting with other males who have prosocial lives and who continue to challenge his pre-existing cultural beliefs regarding the acceptability of violence; and
(iv)engaging in professional treatment to reinforce treatment gains made and to support him in reintegrated back into the community.
(o)Dr McCue’s conclusion was:
Whilst it is recognised by prior treatment providers that [the Applicant] has made progress regarding the management of the factors that are specific to his risk of future violence, it is also noted by these treatment providers that there remain some outstanding treatment needs (such as his managing his impulsive tendencies). His ability to refrain from alcohol use and behave in ways that oppose the use of male violence within his culture given the entrenched nature of previously held pro-violence beliefs, have not been tested within the community. [the Applicant’s] current lack of specific plans regarding future professional supports, his uncertain living arrangements, as well as his previous noncompliance with formal (Court) orders, represent the greatest challenges to him managing his risk of future violence.
(p)In his evidence-in-chief Dr McCue outlined the approach that he had taken in his report. He said that he had not tried to make a general assessment of whether the Applicant’s risk of reoffending was low, high or medium. Instead he had used the HCR-20V3 concept of risk being dynamic, dictated by circumstances. His description was “risk is relevant to the situation a person is in”.[56] He had identified two scenarios in which the Applicant would be at risk of reoffending, they being the two identified in [30](m) above. The following exchange occurred with the Applicant’s counsel:
[56] transcript at 45.
MR GLENISTER: Ultimately at the end of the day you’re unable to give a general sort of opinion about the risk of TDPG’s reoffending outside of these scenarios?
DR MCCUE: Correct, so the thing that I don’t know is how much of an impact or how much of a difference the treatment has made at this point because the treatment has occurred within a custodial setting, and it hasn’t been tested in the community. So, within a controlled setting where obviously the environment is supervised quite closely, and interactions are going to monitored closely, what I can’t assist the tribunal with is knowing the degree to which he will take that learning and be able to apply that in the community.[57]
[57] transcript at 47.
(q)That theme was explored in cross-examination as follows:
MR GERRARD: Thank you. Doctor, taking that last point, that’s essentially one of the factors that the last completion reports of the VOTP came to as well?
DR MCCUE: Yes.
MR GERRARD: … treatment gains - well, gains were made in treatments but it was relevant that it hadn’t been tested in the community. And you agree with that conclusion as well, it’s relevant that - I take from your evidence that it’s relevant that whilst gains have been made, you can’t properly assess it unless - fulsomely assess it (indistinct) some testing in the community?
DR MCCUE: Yes, that’s correct because effectively it’s unknown and so in that sense, you know, what I can’t do is predict. And so, if there had been some evidence of TDPG being able to apply these skills in particular situations unassisted and without the supervision of others in a community setting, that would obviously give me greater confidence that he would continue to apply those skills. So, that’s what I can’t inform the tribunal of at this time.
MR GERRARD: Now, the other matters that were addressed to in at least the VOTP report and I think in the other reports as well, but there were still some unmet underlying issues for TDPG in terms of his impulsivity. I take it that you agree with those sort of findings as well I think?
DR MCCUE: Yes, I had no reason to disagree with the conclusions of the treatment reports. And indeed in my assessment, you know, as much as TDPG understands the factors that he contributed to his offending, the depth of understanding I suppose was less present, in that, he didn’t necessarily understand or could articulate why he would consume so much alcohol, other than it was something that he would do with his peers. So, the underlying factors for those behaviours probably requires more discovery.
MR GERRARD: Is that particular acute with the two most significant - I would take it from your report that you would see the antisocial peers and the abuse of alcohol as being the two significant contributors to his offending. Is it more relevant for those types of situations that are virtually impossible to test in a detention environment?
DR MCCUE: Yes, absolutely. So, I think the factors that seem to be most relevant were the use of alcohol, the heavy use of alcohol, the antisocial peers, but also the more entrenched beliefs about certain situations in which violence is acceptable. And I certainly take from my assessment of TDPG that he understands that’s not the case, but they’re exactly the sorts of situations that have been unable to be tested. So, if he were in the community and he’s with friends that are from the Sudanese community and they were drinking, what hasn’t been tested is his ability to not partake in alcohol, or if conflict were to occur what hasn’t been tested is his ability to use the new skills that he’s acquired through the Violent Offender Treatment Program, to reduce the conflict, to walk away from the conflict, rather than engage in it.[58]
[58] transcript 47–48.
(r)Counsel for the Respondent then asked Dr McCue about the Prisoners Review Board reports which, in refusing the Applicant parole, had referred to unmet treatment needs as well as there being no properly formulated release plans. Dr McCue’s evidence was that:
… According to the HCR-20 that would be something to reduce his risk and to have confidence of reducing his risk, having well-formulated plans about where he would stay, what he would do for work, steps here taken to continue treatment in the community, those sorts of specific plans would help to reduce his risk.[59]
[59] Ibid at 49.
(s)Dr McCue also expressed the view that the Applicant would require ongoing professional support to adjust after such an extended period in custody to maintain the gains that he has made. His view was that he would require psychological counselling, psychological assistance, at least in the short to medium term.
(t)Dr McCue was asked to comment on whether it was significant that the Applicant had previously spent time in prison but had offended shortly after his release. His evidence was:
… it certainly suggests that he requires that assistance if he’s going to leave the custodial environment because the question for me would be when he has been released and outside of that controlled environment, what plans did he have. You know, if it’s an absence of having appropriate plans for either living arrangements and accommodation or work, leisure activities, things like that, the life he will have upon release, it’s the absence of those plans that’s likely going to be that risk for him in reoffending. So certainly that would be something that gives you pause and that you want to consider and that’s, I suppose, partly why I consider this time that the absence of those plans is something that would need to be addressed.[60]
[60] transcript at 49–50.
(u)Counsel for the Respondent also asked Dr McCue whether it was significant that the Applicant had committed violent offences within short intervals of each other. Dr McCue’s evidence was:
DR MCCUE: … I think that’s certainly part of the equation and I’m certainly not disagreeing with that. I think, though, that what has to come into the equation as well is that he’s also engaged in treatment and if the treatment has worked in theory he should be able to delay that motivation to offend. So it’s about balancing the pattern of past offending with what he’s achieved through treatment and the fact that he’s had a number of years in the custodial environment.
MR GERRARD: Although, as we’ve established, time in a custodial environment doesn’t seem to have stemmed his offending in the past?
DR MCCUE: No, it hasn’t.
MR GERRARD: As accepted by yourself and, indeed, by the authors of the report, that the gains he made in treatment only went so far?
DR MCCUE: Yes.[61]
[61] Ibid at 50.
(v)In re-examination Dr McCue was asked to comment on an incident in custody where the Applicant had been assaulted but had walked away rather than retaliating. Dr McCue’s response was that:
… it certainly shows in that instance he was able to pause and to think through the possible consequences or at least think through his options before he immediately reacted or reacted with violence. It suggests that the belief that he has around needing to be respected and it’s okay to use violence to be respected, was certainly something he was able to challenge in that moment. So I think that is something that would suggest that he has made some treatment gains and it possibly evidences the conclusions that have been drawn in the various treatment…[62]
(w)Dr McCue was also re-examined about the vagueness of the Applicant’s plans upon release. Dr McCue said that what struck him was that the Applicant was “somewhat vague” about his plans to seek employment and his living arrangements.[63] When Dr McCue spoke to the Applicant’s sister about his plan to live with her, “… she was less clear about the idea of him living with her because of the living arrangements, that the size of the house would accommodate that”.[64] In relation to the Applicant’s employment plans, Dr McCue’s evidence was that “when he talked about employment, he didn’t necessarily have specific plans or had necessarily identified specific resources that would help him to seek that employment”.[65]
(x)In relation to the link between the Applicant’s alcohol abuse and his violent offending, in response to a question that I put to him, Dr McCue said:
In my opinion, the alcohol is a disinhibitor. So my view is that the violence is more caused by the cultural belief systems and the attitude that suggests that in certain circumstances it’s acceptable to use violence. But the alcohol is something that it’s almost like bringing down the wall.[66]
THE PARTIES’ SUBMISSIONS
[62] transcript at 51.
[63] Ibid.
[64] Ibid.
[65] Ibid.
[66] Ibid at 52.
The Applicant
The Applicant concedes that he has committed crimes that will be viewed very seriously.[67]
[67] Applicant’s SFIC para 27.
The facts for the Applicant’s conviction for grievous bodily harm are set out by Braddock DCJ at R1, T4/74–75. This offence is by itself very serious and led to the Applicant receiving a term of six years’ imprisonment.[68]
[68] Ibid para 28.
The Applicant concedes that he has a lengthy criminal history which includes convictions for violent offences. He has received terms of imprisonment on multiple occasions for a variety of offences.[69]
[69] Applicant’s SFIC para 29.
The Applicant was involved in a violent incident whilst at Hakea prison in September 2013. The Applicant assaulted a fellow prisoner by punching him in the head. The Applicant claimed that he did this due to racial vilification from this prisoner. The Applicant was not charged with assault in relation to this incident.[70]
[70] Ibid para 30.
The main factor in mitigation of the Applicant’s criminal history is the Applicant’s deprived and traumatic background which includes the horrific deaths of his mother, father and other members of his community, and living for seven to eight years in refugee camps. Violence was the norm in the Applicant’s formative years.[71]
[71] Ibid para 31.
The Applicant was young when he committed most of his offences.[72]
Risk of reoffending
[72] Ibid para 32.
The Applicant says that the factors which have motivated his offending in the past are his addiction to alcohol and his propensity to engage in “tribal conflict”. In sentencing the Applicant in June 2014, Braddock DCJ identified the Applicant as having “poor insight, negative attitudes, impulsivity, difficulty managing relationships within [his] community and substance abuse.”[73]
[73] Ibid paras 33–4.
The Applicant last committed an offence on 13 April 2013 and was last negatively involved in a violent incident on 3 September 2013. Since then, the Applicant has completed the following rehabilitation programs: Violent Offender Treatment Program, Think First and Pathways. The Applicant had not participated or completed any rehabilitation programs during his previous terms of imprisonment.[74]
[74] Ibid para 35.
The Applicant commenced the Think First program on 19 August 2015 and completed it on 4 November 2015, attending 27 out of 30 sessions. The program completion report detailed problem-solving gains made by the Applicant, including his ability to identify risk factors to his offending, articulate a plan to reduce or eliminate those factors and develop strategies on how to deal with impediments to his rehabilitation.[75]
[75] Applicant’s SFIC paras 36–7.
The Think First program completion report also:
(a)detailed emotional and self-management gains made by the Applicant, including his ability to identify positive and negative situations, how he felt when he was tense and how to manage himself when he was encouraged to drink or found himself in a confrontation;
(b)confirmed that the Applicant had made treatment gains but that he still had outstanding treatment needs. This report was drafted prior to the Applicant completing the Violent Offender Treatment Program and Pathways. The report did note that the Applicant was genuinely motivated to live a life without violence and conflict; and
(c)set out a risk management plan that the Applicant had developed to reduce the risk of his reoffending. The Applicant articulated that he needed to cease consuming alcohol, engage in further rehabilitation in the community, gain employment, seek support from siblings, gain stable accommodation and involve himself in the church.[76]
[76] Ibid paras 38–40.
The Applicant completed the Pathways on 22 August 2016 having attended 48 of the 50 sessions. The completion report for that program:
(a)stated that the Applicant has developed insight into his issues with alcohol and has generated strategies to manage those issues. The report details that the Applicant has developed consequential thinking skills with respect to alcohol and is able to identify what are high risk situations for him and how he will deal with these situations to avoid a relapse into alcohol abuse;
(b)detailed gains made by the Applicant in the area of emotional regulation. The report details an incident described by the Applicant where the Applicant was punched in the face by another prisoner. The Applicant was able to de-escalate the situation by using learned conflict resolution techniques and instead of retaliating, walked away. This was described in the report as a significant cognitive change in the Applicant;
(c)reported that the Applicant’s outstanding criminogenic factors were now limited (in contrast to the Think First report); and
(d)detailed a risk management plan developed by the Applicant. This is similar to the plan developed in the Think First program but with some further additions, including: being motivated by the prospect of starting a family, writing and performing music and complete abstinence from substances.[77]
[77] Applicant’s SFIC paras 41–6.
The Applicant completed the Violent Offenders Treatment Program on 1 February 2017 having attended 59.5 sessions out of 60. The completion report for that program:
(a)stated that the Applicant made treatment gains with respect to his cognitive distortions and antisocial attitudes. The Applicant articulated how he could identify and deal with antisocial thoughts which would previously have led to violence. The Applicant also identified how associating with anti-social peers had contributed to his offending behaviour and resolved to no longer spend time with such people; and
(b)stated that the Applicant was able to identify risk factors and construct a risk management plan similar to those constructed in the Think First and Pathways programs.[78]
[78] Ibid paras 47–9.
The three rehabilitation program completion reports detailed significant treatment gains made by the Applicant. The Applicant is described in the reports as a markedly different man to the one he was when he was sentenced in 2014.
One outstanding issue identified in the reports is that the Applicant had not taken responsibility for the grievous bodily harm offence. Prior to his last application for parole, the Applicant admitted his guilt with respect to this offence and now accepts responsibility for it.[79]
[79] Applicant’s SFIC para 51.
The Applicant’s conduct whilst imprisoned has been positive. He earned the privilege of living in self-care and was considered to be polite and respectful towards staff. He was employed and conducted his duties without any issues and minimal supervision. He was not considered a management issue.
The Applicant never tested positive for any substance whilst imprisoned or received any prison charges. In addition to the courses already discussed, the Applicant completed the short/voluntary course Positive Communications while in Relationships on 20 March 2018 and at least 11 educational courses.
The Applicant has not been involved in any incidents at Yongah Hill Immigration Detention Centre. He has spent his time training in the gym, keeping healthy, writing music and using Facebook to reconnect with the Sudanese community.
The Applicant has no family outside Australia and he is motivated to remain in Australia with his remaining family. He has a sister and a nephew in Melbourne. He has a brother, a sister and a nephew in Perth. If released into the community, he will have the benefit of stable accommodation as he will live with his sister in Perth.[80]
[80] Ibid para 55.
The Applicant plans to continue writing and playing music, seek employment and reconnect with the Sudanese community if granted a visa. The Applicant would like to play a positive role in his community and provide guidance to younger members of the community to prevent them from following a similar path to him.
The Applicant will also implement his risk management plans if released into the community. He will engage in AA meetings and counselling, abstain from alcohol and refrain from associating with anti-social peers.[81]
[81] Ibid para 57.
While the Applicant has previously been put on notice about the effect of offending on his visa status, that came at a time when he was significantly younger and less mature, and when he had immense treatment needs. 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 family and at risk of serious or significant harm.[82]
[82] Applicant’s SFIC para 58.
The Applicant has made significant treatment gains and addressed most, if not all, of his treatment needs. The Applicant has not been involved in a violent incident for approximately eight years and has not consumed alcohol or illicit substances in that time. The Applicant has significant protective factors which further reduce the risk of him reoffending, not least of which is the mortal peril which a return to South Sudan would constitute. The Applicant has a plan should he be released into the community and is committed to leading a prosocial life.[83]
[83] Ibid para 59.
The Respondent
The Applicant has a significant criminal history which commenced less than six months after arriving in Australia. Between 31 August 2006 and 25 February 2013, the Applicant committed 45 offences. His convictions include several offences of violence, unlawful damage, rioting and breach offences. He has a history of significant alcohol use.[84]
[84] Respondent’s SFIC para 3.
The Applicant was considered for visa cancellation in 2011 and was formally warned on 17 October 2011. He applied for citizenship the following year but his application was found to be invalid.[85]
[85] Ibid para 5.
On 23 June 2014 the Applicant was convicted in the District Court of Western Australia of grievous bodily harm and sentenced to six years imprisonment.[86]
[86] Ibid para 6.
On 11 June 2015 the Applicant’s visa was cancelled by a delegate under s 501(3A) of the Act. This was a mandatory cancellation as the applicant was serving a sentence of imprisonment. The Applicant sought revocation of the mandatory visa cancellation. However, on 19 October 2017 the Assistant Minister decided to not revoke the cancellation.[87]
[87] Respondent’s SFIC para 7.
The Applicant unsuccessfully sought judicial review of the decision not to revoke in the Federal Court. On 13 November 2018, Barker J dismissed the application for judicial review.[88] The Applicant appealed this decision to the Full Court of the Federal Court but ultimately abandoned this appeal on 31 January 2019.[89]
[88] BKS18 v Minister for Home Affairs [2018] FCA 1731.
[89] Respondent’s SFIC para 9.
The Applicant applied for the protection visa on 29 April 2019. This application was refused by a delegate on 21 October 2019. In his decision 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 that there is a real risk that the Applicant will suffer significant harm.[90]
[90] Ibid.
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 of the Act). Rather, if the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision: s 65 of the Act (see [17] above) and MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 at [29]–[32]. It cannot balance the danger against the possible harm to an applicant if returned to their receiving country: SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 (SZOQQ) at [27].[91]
[91] Ibid para 16.
Rehabilitation is never certain,[92] citing Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148 (Vabaza):
[t]he duty (of the tribunal) is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of the case is an unacceptable risk.
and Deputy President Handley in BHYK v Minister for Immigration and Citizenship [2010] AATA 662 who said that the role of 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.
[92] Ibid paras 17–18.
The question of whether the Applicant is a “danger to the Australian community” is a question of fact and degree: WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG) per Deputy President Tamberlin QC; DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18).[93]
[93] Respondent’s SFIC paras 19–20.
In considering the expression ‘danger’, Deputy President Tamberlin QC in WKCG found at [31]:
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 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.”
(Respondent’s SFIC para 21.)
The Respondent contends[94] that the following matters demonstrate that the Applicant is a danger to the community:
[94] Ibid para 25.
(a)The Applicant’s criminal history is lengthy and reveals a concerning history of violence. The Applicant’s latest and most serious offence involved extreme violence. The Applicant assaulted one of his friends and later set him on fire. The Respondent refers to the sentencing remarks of Braddock DCJ which were:
It was also of itself a most horrific manner to attack another human being by setting them on fire. And clearly you showed no concern whatsoever for his welfare thereafter in that you removed him into the house, did not seek medical treatment and simply stayed with him, left him to suffer what he was then suffering in a state of unconsciousness or almost unconsciousness in the room in that house. You showed him absolutely no compassion, no mercy and no fellow human feeling for the state that you had caused him to be in.[95]
[95] R1, T4/75.
(b)The victim ultimately received an award of criminal injuries compensation in the amount of $112,530 with the District Court noting that the victim had suffered burns to over 10% of his body, required surgery, was left with scarring and sustained psychological harm: [omitted] v [Applicant].[96]
[96] Citation omitted as it would identify the Applicant.
(c)The Applicant has also received convictions for behaving in a violent manner on a railway in 2013, recklessly cause injury in 2013, rioting causing damage in 2010 and unlawful wounding in 2009. He has a history of using weapons or objects fashioned into weapons in his criminal offences: see for example [Applicant] v [omitted][97] at [8]–[12] which sets out the Applicant’s history of offending involving a variety of kitchen knives and a metal bar wrapped in PVC tape.
[97] Citation omitted as it would identify the Applicant.
(d)The sheer number and pattern of offences committed by the Applicant are indicative of a clear risk to the community. The Applicant has a significant criminal record which commenced only six months after arrival in Australia and extends for nearly 10 years. It covers a range of offences including violence, riotous assembly, trespass, disorderly behaviour and breach and driving offences. It could not be said that his most recent offences constitute an aberration and indeed there is a pattern of escalating seriousness.
(e)There is no optimism to be drawn from the sentencing remarks or psychological assessments of the Applicant. Braddock DCJ observed that the Applicant had received the benefit of being placed on a number of community-based orders all of which had been cancelled. Her Honour referred to a psychological report which noted that the Applicant has “learned to survive and behave in a way which does not suit him for living in a civilised society in a civilised and peaceful way”. Her Honour went on to find that there is “little to be said in [the Applicant’s] favour”, he did not have positive prospects for rehabilitation, his history showed he was not “easily readily able to change” and that the future for the applicant was “not positive without significant change”.[98] O’Neal DCJ stated in sentencing the Applicant in April 2011 in respect of earlier offences, that an assessment that the Applicant was not a suitable candidate for a community-based disposition was “a very diplomatic bit of understatement”.[99]
[98] R1, T4/78–9.
[99] R1, T4/62.
(f)The Applicant was denied parole by the Prisoners Review Board on 27 March 2017. The Board acknowledged that the Applicant had completed the Think First, Pathways and Violent Offending Treatment Program but noted that outstanding treatment needs had been identified in relation to the Applicant’s “impulsivity and violent and aggressive behaviour cycles” and that the Applicant had “developed very few strategies to address these outstanding needs”. The Board also found that the Applicant’s extensive criminal history suggested a high risk of reoffending.
(g)The Applicant has committed a significant number of serious offences after receiving a formal warning from the Department on 17 October 2011. Consequently, the Tribunal should find that his offending has been undeterred by either custodial sentencing or formal warning from the Department.
(h)The Tribunal can take no comfort from the report of Dr McCue. It is readily apparent from Dr McCue’s report that the Applicant’s situation is punctuated by significant extant risk factors and that those risk factors relate to a risk of violence. In particular, Dr McCue’s report[100] observes the following:
[100] A1.
(i)The Applicant likely met the criteria for Alcohol use Disorder at the time of his offending. Whilst that may now be in remissions that is the result of him being in a controlled environment (prison and detention) where access to alcohol is restricted.
(ii)The Applicant reported disturbing pro-violence views where he explained that in his culture it is acceptable for men to hit women, particularly in the context of a relationship.
(iii)There were clearly identified and relevant historical factors related to a risk of future violence including histories of violence, antisocial behaviours, substance use (alcohol) abuse, violent attitudes and treatment or supervision response problems.
(iv)The Applicant’s treatment or supervision response problems were identified as a relevant clinical factor relating to risk.
(v)Dr McCue identified future risk factors as being:
·issues related to professional treatment and supports, noting that whilst the Applicant was motivated to engage in such programs, he has not identified specific services which would be of benefit to him;
·issues with his future living situation which lacked detail; and
·issues associated with his treatment or supervision response noting that his risk of non-compliance is elevated due to his previously having breached Court orders and his ability to comply with conditions placed on him following his completion of custodial programs has not been tested in a community setting.
(vi)Dr McCue’s report also posited two specific scenarios where the Applicant’s risk of violence was elevated, being the two identified in [30](m) above.
(vii)Dr McCue’s report concluded by noting that, whilst the Applicant had made progress regarding the management of the risk factors specific to his risk of violence:
·there remain outstanding treatment needs (such as managing his impulsive tendencies);
·his ability to refrain from alcohol use or refrain from engaging in behaviour consistent with his prior identified pro-violence tendencies had not been tested in the community;
·he lacks specific plans regarding future professional support;
·his living arrangements were uncertain; and
·he had a history of noncompliance with Court orders.
CONSIDERATION
The sole issue for determination is whether the Applicant is a danger to the Australian community.[101]
[101] The Act s 36(1C)(b).
As the Respondent noted in his submissions, there are two potentially conflicting authorities on the interpretation of s 36(1C)(b) of the Act. 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 his judgment 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.
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 eluded to by Logan J, the Tribunal has on numerous occasions adopted the approach taken by Deputy President Tamberlin QC in WKCG.[102]
[102] See RWDX and Minister for Home Affairs [2019] AATA 123; MVLW; LKQD and Minister for Immigration and Border Protection [2018] AATA 2710; HSCK and Minister for Home Affairs [2019] AATA 4392.
My reading of Logan J’s judgment is that the particular aspect of Deputy President Tamberlin QC’s decision with which his Honour has 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.”[103] (Original emphasis.)
[103] See [64] above.
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 [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.
In the case of LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591 (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.
It may be that there is not much practical difference between the respective statements of Deputy President Tamberlin QC and Logan J as to the operation of s 36(1C) of the Act. Logan J appears not to take any issue with the considerations identified in [31] of Deputy President Tamberlin QC’s decision (see [65] above) in determining the danger that the community faces in each case. Jackson J in LKQD similarly seemed to have no issue applying the considerations identified by Deputy President Tamberlin QC in WKCG (see [73] above). The difference appears to come down to that identified in [71] and [72] above.
The Respondent’s submission on the possible difference in interpretation was:
22. The Respondent notes that in DOB18 Logan J made comments in relation to WKCG above and stated that ‘danger’ means ‘present and serious risk’ ([83]) and that it must be so into the indefinite future ([75] and [88]). That is, the Applicant must be shown to be presently and into the indefinite future a risk and that the risk must be serious. The other member of the majority, Robertson J, did not endorse those comments and they do not form part of the ratio of the case. However, this Tribunal may find those comments persuasive.
23. 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.[104]
[104] Respondent’s SFIC paras 22–23.
The relevant considerations in assessing whether the Applicant is a danger to the community by reference to the principles set out in WKCG, in particular [31] of Deputy President Tamberlin QC’s decision (see [65] above), with which I agree, are considered below. I also address Logan J’s interpretation of s 36(1C) as set out in [83] of his judgment (see [72] above).
Seriousness and nature of the crimes committed
The Applicant has a substantial and serious criminal record with multiple high-end offences of violence. Between 31 August 2006 and 25 February 2013, the Applicant committed 45 offences. His convictions include grievous bodily harm (six years imprisonment), unlawful assault (12 months imprisonment), behave in a violent manner, recklessly causing injury, riot (four convictions), unlawful wounding (two convictions), threats to injure, trespass (two counts), endanger or harm, possession of/carry article with intent to injure (two convictions), multiple counts of disorderly behaviour, consumption of alcohol on a conveyance, multiple counts of failing to give police details, multiple offences of obstructing police, breaches of conditional sentences, breach of bail, multiple unlawful or criminal damage and traffic offences.
Obviously of most concern are the repeated acts of violence against partners and the savage attack on a friend whom he beat unconscious with a stick and then set fire to. As Braddock DCJ described it “a most horrific manner to attack another human being.[105] The permanent injuries (both physical and psychological) suffered by the victim were significant, as reflected by the award of $112,530 by way of criminal injuries compensation.
[105] R1, T4/75.
Another concerning element of the Applicant’s offending has been his repeated use of knives and other weapons. The Western Australian Court of Appeal in [omitted] listed circumstances before 2011 when the Applicant had carried or used weapons. There were multiple separate convictions identified by the Court of Appeal. His use of weapons continued after that time right up to the most recent incident which resulted in his convictions for grievous bodily harm and unlawful assault.
The length of the sentences imposed
The Applicant has been sentenced to terms of imprisonment on multiple occasions with the total of the sentences imposed being 161 months and 37 days.
The sentences imposed by the courts, particularly the seven years (partly concurrent) imposed by the court in June 2014 for the grievous bodily harm and the unlawful assault, indicate that the courts have considered the Applicant’s offending to be very serious.
Mitigating or aggravating factors
The obvious mitigating factors are the Applicant’s antecedents. He was exposed to violence and famine as a child in Sudan. He spent a period of his life in refugee camps and suffered the early loss of his parents as described by Dr McCue in his report (see [30](b) above). For his early offending the Applicant could point to his relative youth as a mitigating circumstance, but his later, more serious offences, were committed well after the excuse of youth and immaturity could be used.
In relation to the “mitigating” impact that the Applicant’s antecedents and relative youth in respect of his earlier offences might have, the task that I am to undertake is to assess whether the Applicant is a danger to the Australian community. While these factors might be mitigating in considering a sentence to be imposed for an offence, it is difficult to see how they “mitigate” in considering the possibility, or even probability, of re-offending and the consequences to the community of such offending. This is particularly the case where the Applicant has continued to offend into his adulthood. 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.[106]
[106] WKCG at [26].
The difficulty that I have in considering the Applicant’s undoubtedly tragic youth and the violence to which he was exposed growing up as a mitigating factor, is that the Applicant’s psychological makeup seems to have been significantly influenced by his early environment. As Dr McCue noted, the Applicant was raised in a family environment where “beating was a way of life” (see [30](b) above) and his sister had commented that “we were raised that violence is okay… a husband is allowed to beat their wife” (see [30](c) above). Dr McCue reported that the Applicant had explained to him that, in his culture, it is acceptable for a man to hit his female partner, particularly if she disrespects him or hits him (see [30](e) above) and that in his culture, it is important for males to demonstrate their dominance and to stand up for themselves. The Applicant stated to Dr McCue that “I was raised not to bow down. It brings shame to the family. If someone says something, you say something back. If they want to fight, you fight. I was told to fight people, not kill people, but fight”. He explained that in his culture it is acceptable for men to hit women, particularly in the context of a relationship (see [30](h) above).
As noted above, in response to a question that I put to Dr McCue about the role that alcohol played in the Applicant’s offending, Dr McCue advised that “…my view is that the violence is more caused by the cultural belief systems and the attitude that suggests that in certain circumstances it’s acceptable to use violence”.[107]
[107] See [30](x) above.
I also note the comment by Braddock DCJ cited at [63](e) above that the psychological report before her noted that the Applicant has “learned to survive and behave in a way which does not suit him for living in a civilised society in a civilised and peaceful way”. Her Honour went on to find that there is “little to be said in [the Applicant’s] favour”, he did not have positive prospects for rehabilitation, his history showed he was not “easily readily able to change” and that the future for the applicant was “not positive without significant change”.
Accordingly, 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.
and at [27]:
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.
The Applicant undertook three programs while in prison. While the completion reports for each of the programs noted that the Applicant had made gains, as noted by Dr McCue (see [30](i) above), each of the reports acknowledged that the Applicant had not had the opportunity to demonstrate his treatment gains in the community and outside of a controlled environment.
Dr McCue’s own assessment was not encouraging. His conclusion referred to at [30](o) above is that there are still outstanding treatment needs and that the Applicant’s ability to refrain from alcohol use and behave in ways that oppose the use of male violence within his culture, given the entrenched nature of previously held pro-violence beliefs, have not been tested within the community. Further, his current lack of specific plans regarding future professional supports, his uncertain living arrangements, as well as his previous noncompliance with formal (Court) orders, represent the greatest challenges to him managing his risk of future violence. Dr McCue’s evidence in cross-examination further emphasised the reservations that he had about the ability of the Applicant to avoid circumstances, in particular anti-social peers and alcohol, which represented high risk scenarios for the Applicant re-offending violently (see [30](p)–(w) above).
I am also mindful that the Prisoners Review Board has twice rejected the Applicant’s requests for parole on the basis that he posed an unacceptable risk, even in circumstances where conditions could be imposed, an option which is not available in the present case. I am also conscious of the remarks made Braddock DCJ and O’Neal DCJ in sentencing concerning the Applicant’s prospects of rehabilitation (see [29](z), [37], [63](3) and [87] above)
I am also concerned about the Applicant’s apparent failure to accept responsibility for the most savage of his attacks, that which gave rise to the grievous bodily harm and unlawful assault convictions. His evidence was not impressive in this regard. The Prisoners Review Board had, as recently as 2018, noted his failure to admit responsibility for those offences and, while it was submitted on his behalf that he accepted liability now, his evidence as to just when he accepted liability was confused and unconvincing (see [29](y)–(aa) above).
The Applicant’s evidence about his violence towards women was also contradictory and unsatisfactory. His answer to his counsel in examination-in-chief that he had not been violent towards his girlfriend was exposed in cross-examination not to be true. Similarly, his claim in examination-in-chief that he did not take drugs was shown not to be true in cross-examination. This is not encouraging when, in effect, all that we have in relation to the Applicant being a changed person who will not revert to his violent ways, is his claim that that is the case. That is not sufficient.
I accept that the Applicant has made some gains through the courses that he has undertaken while in prison and that generally his conduct in prison has been good, except obviously for the assault on another prisoner in September 2013. In saying that, however, the Applicant was vague about the programs that he had undertaken, he could not initially remember the name of one of them[108] and thought the two of them were similar.[109] His evidence did not demonstrate any depth of understanding or disclose how the programs had addressed his offending behaviour or equipped him to better deal with the circumstances that he would confront in the community which in the past had resulted in his offending.
[108] transcript at 13.
[109] Ibid at 14.
I am not satisfied that the Applicant has done enough to address the underlying causes of his violent behaviour. While it might be that alcohol abuse was associated with the Applicants violent behaviour in the past, I am mindful of Dr McCue’s assessments and evidence set out at [30](o), [30](q), [30](s), [30](t), [30](u), [30](w) and [30](x) above.
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 [66] 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.[110] At [83] of his judgment, Logan J stated that “read in context, ‘danger’ in s 36(1C) means present and serious risk” (see [73] 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.
[110] Respondent’s SFIC para 23.
DECISION
l find that:
(i) the Applicant has been convicted by a final judgment of a particularly serious crime, and
(ii) the Applicant is a danger to the Australian community; and
(iii) 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 21 October 2019 to refuse the Applicant a Protection (subclass 866) visa under s 65(1)(b) of the Migration Act 1958 (Cth) (the Act) is affirmed.
I certify that the preceding 100 (one-hundred) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
....[SGD]....................................................................
Associate
Dated: 15 March 2021
Date of hearing: 10 December 2020 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 ANNEXURE
Court
Result Date
Offence
Offence Date
Penalty Imposed
Perth Magistrates Court
26 October 2006
Disorderly behaviour in public place
31 August 2006
Six months community release order; $400 undertaking
Midland Magistrates Court
12 December 2007
Careless driving (learner’s permit)
10 August 2007
$300 fine; three months motor driver’s licence disqualification (concurrent)
No driver’s licence (never held) (learner’s permit)
10 August 2007
$300 fine; three months motor driver’s licence disqualification (concurrent)
Perth Magistrates Court
9 December 2008
No authority to drive (learner’s permit)
5 September 2008
$200 fine; three months motor driver’s licence disqualification (concurrent)
Perth Magistrates Court
29 July 2009
Carried an article with intent to injure (disable)
9 March 2008
100 hours community work; 12-month intensive supervision order
Unlawful wounding
26 July 2008
Suspended imprisonment order; seven months imprisonment (concurrent) suspended for 12 months
Unlawful damage
24 August 2008
100 hours community work; 12-month intensive supervision order
Possessed an article with intent to injure (disable)
100 hours community work; 12-month intensive supervision order
Disorderly behaviour in a police station
$250 fine
Threats to injure, endanger or harm any person
9 May 2009
100 hours community work; 12-month intensive supervision order
Criminal damage
100 hours community work; 12-month intensive supervision order
Trespass
10 May 2009
100 hours community work; 12-month intensive supervision order
Possessed an article with intent to injure (disable)
100 hours community work; 12-month intensive supervision order
Fremantle Magistrates Court
11 September 2009
Obstructing public officers
30 March 2009
$300 fine
Midland Magistrates Court
23 December 2009
Fail to comply with request to give police personal details
11 August 2009
$400 fine
Consume alcohol in or on a conveyance or facility
$400 fine
Perth Magistrates Court
29 June 2010
Fail to comply with request to give police personal details
30 May 2010
$500 fine
Disorderly behaviour in a public place
$500 fine
Perth District Court of Western Australia
5 August 2010
Rioters causing damage
30 March 2009
Conditional suspended imprisonment order; six months imprisonment (concurrent) suspended for 12 months (conditions: programme and supervision)
Rioters causing damage
30 March 2009
Conditional suspended imprisonment order; six months imprisonment (concurrent) suspended for 12 months (conditions: programme and supervision)
Rioters causing damage by fire
30 March 2009
Conditional suspended imprisonment order; six months imprisonment (concurrent) suspended for 12 months (conditions: programme and supervision); total 6 months imprisonment conditionally suspended for 12 months with programme and supervision
Rioters causing damage by fire
30 March 2009
Conditional suspended imprisonment order; six months imprisonment (concurrent) suspended for 12 months (conditions: programme and supervision)
Perth Magistrates Court
1 December 2010
Obstructed (hindered, impeded or attempts to obstruct, hinder, impede) an authorised person (or security)
16 August 2010
$400 fine
Fail to comply with request to give police personal details
$300 fine
Perth District Court of Western Australia
15 April 2011
Person who breaches conditional release order or community order without reasonable excuse
Three months imprisonment (cumulative);
(total 22 months imprisonment from 7 December 2010)
Person who breaches conditional release order or community order without reasonable excuse
Three months imprisonment (concurrent);
(total 22 months imprisonment from 7 December 2010)
Person who breaches conditional release order or community order without reasonable excuse
Three months imprisonment (concurrent);
(total 22 months imprisonment from 7 December 2010)
Person who breaches conditional release order or community order without reasonable excuse
Three months imprisonment (concurrent);
(total 22 months imprisonment from 7 December 2010)
Person who breaches conditional release order or community order without reasonable excuse
Three months imprisonment (concurrent);
(total 22 months imprisonment from 7 December 2010)
Person who breaches conditional release order or community order without reasonable excuse
Three months imprisonment (concurrent);
(total 22 months imprisonment from 7 December 2010)
Person who breaches conditional release order or community order without reasonable excuse
Three months imprisonment (concurrent); (total 22 months imprisonment from 7 December 2010)
Obstructing public officers
Two months imprisonment (concurrent)
Obstructing public officers
Six months (cumulative)
Disorderly behaviour in public place
$500 fine
Carried (possessed) an article with intent to cause fear that someone will be injured or disabled
Six months imprisonment (cumulative)
Breach of bail (fail to appear soon after)
One month imprisonment (cumulative)
Breach of conditionally suspended sentence
Six months imprisonment (concurrent)
Breach of conditionally suspended sentence
Six months imprisonment (concurrent)
Breach of conditionally suspended sentence
Six months imprisonment (concurrent)
Breach of conditionally suspended sentence
Six months imprisonment (concurrent)
Midland Magistrates Court
19 April 2011
Damaging property
Three months imprisonment (concurrent from 19 April 2011)
Dandenong Magistrates Court
17 January 2013
Recklessly cause injury
11 December 2012
37 days imprisonment
Perth Magistrates Court
16 April 2013
Behave in a violent manner on any railway
18 February 2013
$300 fine
Perth Magistrates Court
7 May 2013
Trespass on any part of railway not being a part to which the public are allowed access
15 March 2013
$200 fine
Perth District Court of Western Australia
23 June 2014
Grievous bodily harm
13 April 2013
Six years imprisonment (concurrent from 13 April 2013)
Perth Magistrates Court
24 June 2014
Unlawfully assault and thereby did bodily harm with circumstances of aggravation
25 February 2013
12 months imprisonment (concurrent from 24 June 2014)
4
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