THYM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 113
•8 February 2023
THYM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 113 (8 February 2023)
Division:GENERAL DIVISION
File Number: 2020/1576
Re:THYM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Date: 8 February 2023
Place:Brisbane
The Tribunal affirms the reviewable decision dated 11 March 2020 and finds that:
(1)having been convicted of a particularly serious crime, the Applicant is a danger to the Australian community within the meaning of ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act; and
(2)the Applicant is not eligible for a Protection visa pursuant to s 35(1A) of the Act.
................................[SGD]...................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant engages s 36(2C)(b) of the Migration Act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
DOB18 v Minister for Home Affairs [2019] FCAFC 63
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17 25
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174
WKCG v Minister for Immigration and Citizenship [2009] AATA 512
Secondary Materials
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
Protocol Relating to the Status of Refugees
Ministerial Direction 75 – Refusal of Protection visas relying on ss 36(1C) and 36(2C)(b)
United Nations Convention Relating to the Status of Refugees
REASONS FOR DECISION
Senior Member Theodore Tavoularis
8 February 2023
The decision under review
Before the Tribunal is an application seeking review of a decision made on 11 March 2020, refusing the grant of a Protection (subclass 866) visa (Class XA) (‘the Visa’) to the Applicant. The decision was made by a delegate of the Minister For Immigration, Citizenship and Multicultural Affairs (‘the Respondent’ or ‘the Minister’). The basis of the decision under review was that the Applicant did not satisfy the criterion in s 36(1C) of the Migration Act 1958 (Cth) (‘the Act’). This decision was made pursuant to s 65 of the Act. Legislative imprimatur for this application derives from s 500(1)(c)(i) of the Act. This section facilitates this Tribunal’s review of applications relating to decisions of the Respondent refusing the grant of a Protection visa in reliance upon s 36(1C) of the Act.
Procedural History
Mandatory cancellation history
The Applicant is a citizen of Eritrea. About a year and a half after his arrival in Australia on 2 July 1986, he was granted a permanent entry permit as a refugee on 4 December 1987. Approximately seven years later, on 1 September 1994, the Applicant was granted a Class BF Transitional (Permanent) visa.[1]
[1] G1, p 9.
In its Statement of Facts, Issues and Contentions (‘SFIC’) the Respondent has helpfully completed a concise summary of the Applicant’s extensive history of offending in Australia. It is a very concerning history containing numerous convictions for, inter alia, serious offences against the person including offences for direct physical offending against law enforcement officers.
This offending culminated in the mandatory cancellation of the abovementioned visa previously granted to the Applicant on 1 September 1994. There followed a decision from the Respondent refusing to revoke the mandatory cancellation of that visa. On 8 November 2016, The Federal Court dismissed an application for review of the Respondent’s refusal decision.
Protection visa history
Contemporaneous with the process involving mandatory cancellation of his visa, the Applicant did, on 8 November 2016, make application for the visa.[2] The procedural history relating to the visa then proceeded thus:
[2] That is, the Protection visa referred to in para [1] of these Reasons.
·on 31 July 2017: the visa was refused pursuant to a finding that the Applicant was not owed protection obligations;
·on 21 November 2017: another division of this Tribunal[3] set aside the immediately preceding refusal decision and remitted the matter back to the Respondent with a finding that the Applicant was a refugee pursuant to s 5H(1) of the Act;
[3] That is, the Migration and Refugee Division.
·on 17 July 2018, the Respondent delegate – exercising their power pursuant to s 501(1) of the Act – refused the grant of a Protection visa;
·on 27 September 2018, this Tribunal set aside the immediately preceding s 501(1) refusal decision and remitted the matter to the Respondent with a direction that it (i.e. the refusal decision) be re-determined in accordance with this Tribunal’s previous finding (on 21 November 2017) about the Applicant’s status as a refugee;
·on 11 March 2020, the Respondent refused the grant of a Protection visa on the following grounds:
ohaving been convicted by a final judgment of a particularly serious crime, the Applicant was a danger to the Australian community;
oas a consequence, it was found that the Applicant did not satisfy the criterion contained in s 36(1C) of the Act.;
·on 16 March 2020, the Respondent sought review of the immediately preceding Protection visa refusal decision in this Tribunal;
·on 19 November 2021, this Tribunal (differently constituted) set aside the Respondent’s Protection visa refusal decision (made on 11 March 2020) the basis of this set–aside decision was that as the Applicant was then in immigration detention, he could not be a danger to the Australian community;
·on 16 June 2022, the Respondent successfully appealed this Tribunal’s immediately preceding decision. The Federal Court quashed this Tribunal’s decision on the basis that whether someone was a danger to the Australian community was an assessment to be made on the basis that the person would not be in immigration detention;
·on 28 November 2022, the instant Hearing proceeded before me. The Hearing received oral evidence from (1) Dr Annie McCluskey and (2) the Applicant (whose evidence was received via an interpreter). The Hearing also received written material which was itemised into an Exhibit List which comprised the following two exhibits: (1) Exhibit R1 (Respondent’s SFIC); and (2) Exhibit G1 (Remittal Bundle).
Legislation
Precursory provisions
The starting point is s 4(1) of the Act which describes its object thus: ‘The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
In terms of how the object of the Act is brought into practical effect, s 4 contains the following relevant provisions:
‘(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
…
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.’
Section 29 of the Act provides that the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, and/or remain in Australia. Pursuant to s 13 of the Act, a person who holds a visa is a lawful non-citizen. It follows that a person who does not hold a visa is, pursuant to s 14 of the Act, an unlawful non-citizen.
The Applicant is, by definition, an unlawful non-citizen and has thus been held in immigration detention pursuant to section 189 of the Act. Pursuant to s 196 of the Act, because the Applicant is not an unauthorised maritime arrival, the Applicant must be kept in immigration detention until removed or deported from Australia, or alternatively, until granted a visa. If the Applicant is not granted the visa he seeks, his status will remain that of an unlawful non-citizen. In those circumstances, section 198 of the Act has operation such that the Applicant must be removed from Australia as soon as reasonably practicable.
Section 45 of the Act facilitates applications for visas. Section 46 of the Act stipulates the criteria for a valid visa application. Schedule 1 to the Migration Regulations 1994 (Cth) (‘Regulations’) sets out the specific ways in which a non-citizen applies for a visa of a given class. Section 47 of the Act provides that the Minister must consider a valid application for a visa and must not consider an application that is not a valid application.
Briefly summarised, s 65 of the Act provides that, after considering a valid application for a visa, if the Minister is satisfied that:
(a)the health criteria (if any) for the grant of the visa have been satisfied;
(b)the other criteria for the grant of the visa have been satisfied;
(c)the grant of the visa is not prevented by other sections of the Act; and
(d)any visa application charge payable has been paid,
- the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.
If the Minister is minded to grant a visa, s 30 of the Act allows for the granting of both permanent and temporary visas. Further, the Act provides for specific classes within the respective categories of permanent and temporary visas. The specific classes of visas are also capable of prescription by regulations enabled by the Act.
With specific reference to protection visas, s 35A of the Act provides for two specific classes of such visas. They comprise (1) permanent protection visas pursuant to s 35A(2) of the Act and (2) temporary protection visas pursuant to s 35A(3) of the Act.
The grant of a protection visa requires an applicant to meet certain criteria. They are contained in s 36 of the Act and Schedule 2 to the Regulations.
Subsection 36(2) of section 36 of the Act relevantly provides:[4]
‘A criterion for a Protection visa is that the applicant for the visa is:
a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…’
[4] The Applicant does not claim to engage either of ss 36(2)(b) or (c) – his immediate family members still hold subclass 202 Global Special Humanitarian visas (Exhibit T1, T2, page 17).
Given the language of the respective subsections, I will refer to the specific criteria in s 36(2)(a) of the Act as the ‘Refugee’ criteria. I will refer to the specific criteria in s 36(2)(aa) of the Act as the ‘Complementary Protection’ criteria.
Most relevant provisions for present purposes
Most relevantly for present purposes is the criterion for the grant of a protection visa stipulated in s 36(1C)(b) of the Act. It provides:
‘A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
…
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.’
Section 36(2C)(b) largely mirrors s 36(1C), and relevantly provides:
‘A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
…
(b) the Minister considers, on reasonable grounds:
…
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.’
What constitutes a ‘particularly serious crime’?
To determine whether an offence constitutes a ‘a particularly serious crime’ for the purposes of ss 36(1C)(b) and 36(2C), reference must be had to s 5M of the Act which provides:
‘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”.’
The Respondent does not contend that the Applicant has committed a serious foreign offence. There is no reference to the commission of any such offence in the material.
For an understanding of what constitutes a “serious Australian offence”, reference must be had to s 5 of the Act which relevantly provides:
‘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.’
Assessing whether a person is a ‘danger to the Australian community.’
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions[5] or the exercise of those powers.[6]
[5] The Act, s 499(1)(a).
[6] Ibid, s 499(1)(b).
Section 499(2A) of the Act provides that a person or body having functions or powers under the Act must comply with a direction issued pursuant to s 499(1) of the Act. For present purposes, the relevant direction dates from 6 September 2017 at which time the Minister for Immigration and Border Protection[7] issued Ministerial Direction 75 – Refusal of Protection visas relying on ss 36(1C) and 36(2C)(b) (‘Direction 75’ or ‘MD 75’). It governs delegates in the process of considering valid applications for Protection visas under section 47 of the Act and in the performance of their functions or the exercise of their powers pursuant to s 65 of the Act to grant or refuse to grant Protection visas.
[7] A previous title of the Respondent in the instant application.
The definitive guide for a decision-maker in determining whether a person constitutes a danger to the community of Australia is to be found in the decision of a past Deputy President of this Tribunal in WKCG v Minister for Immigration and Citizenship [2009] AATA 512 (‘WKCG’). In that case, Deputy President Tamberlin QC established a multi-component test for assessing whether a person constitutes a danger to the Australian community. The components of that test comprise a decision-maker having regard to:
(1) the seriousness and nature of the crimes committed, the length of the imposed, and any mitigating or aggravating circumstances;
(2) the criminal record in totality – including the extent and nature of any prior convictions and the period over which they took place;
(3) the risk of re-offending and recidivism and the likelihood of re-lapsing into crime; and
(4) any prospects of rehabilitation.[8]
25.In WKCG, Deputy President Tamberlin QC explained that whether a person is a danger to the Australian community is a question of fact and degree.[9] The learned Deputy President Tamberlin QC also explained that the task for the Tribunal in answering the second question in s 36(1C)(b) as follows:
‘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.’
26.In DOB18 v Minister for Home Affairs [2019] FCAFC 63, Logan J explained that for s 36(1C)(b) to be made out, the Tribunal has to be satisfied that the Applicant ‘is and will into the indefinite future be a danger, not that the person once was a danger.’[10] Logan J further explained that danger ‘means present and serious risk.’[11]
27.Beyond the factors identified in WKCG, I must also have regard to all substantial, clearly articulated and relevant contentions propounded by the parties[12].
[8] See WKCG para [26].
[9] See WKCG para [25].
[10] DOB18, para[75].
[11] Ibid, para [83].
[12] See generally LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17 25[31]–27[40] and the cases cited in those paragraphs.
The principles in Direction 75.
28.In considering an application for a protection visa, Direction 75 compels delegates to consider (1) whether an applicant meets the Refugee criteria in s 36(2)(a) of the Act; and (2) the Complementary Protection criteria in s 36(2)(aa) of the Act before considering the disqualifying criteria in ss 36(1C) and s 36(2C) of the Act or considering refusal on character grounds under s 501 of the Act.
Direction 75’s application to delegates is significant. Direction 75 can be differentiated from other directions such as Ministerial Directions 79 and 84 because it (Direction 75) does not bind the Tribunal for the purposes of merits review. Additionally, directions made pursuant to s 499 of the Act do not personally bind the Respondent. Therefore, the operative effect of Direction 75 does not extend to compelling this Tribunal to undertake its own assessment of whether this Applicant meets the Refugee criteria or the Complementary Protection criteria as a necessary precursor to considering the extent to which the disqualifying criteria in ss 36(1C) and 36(2C) apply to this Applicant.[13]
[13] See discussion by Senior Member Furnell in WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38 at [175]. See also discussion by Deputy President Boyle in RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123 at [76]–[78] and HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [151]–[153].
In any event, it is plain from the decision of the Respondent Minister’s delegate under review that the delegate acted in accordance with Direction 75 and made the necessary assessment about whether the Applicant met the Refugee Criteria and the Complementary Protection criteria prior to considering the relevant disqualifying criteria located in ss 36(1C) and 36(2C) of the Act. In terms of the first part of the delegate’s analysis, the delegate found that the Applicant did indeed satisfy the Refugee Criteria in s 36(2)(a) of the Act. The delegate essentially adopted this Tribunal’s earlier finding that the Applicant was a refugee:
‘On 21 November 2017, the Administrative Appeals Tribunal remitted the Permanent Protection (subclass 866) visa application for reconsideration5. The Tribunal directed that [the Applicant] (the applicant) is a refugee within the meaning of subsection 5H(1) of the Migration Act.
Therefore, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations because the person is a refugee under s36(2)(a)…’[14]
[14] G1, p8.
The delegate made a similarly favourable finding that the Applicant met the complementary protection criteria in s 36(2)(aa) of the Act. The delegate noted:
‘….there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Eritrea there is a real risk that the applicant will suffer significant harm under s 36(2)(aa).’
As best as I understood the material, I do not consider that either party sought to agitate the delegate’s findings in relation to either of these elements. I will therefore not predicate my findings about s 36(1C) of the Act on the basis of whether or not the Applicant satisfies the criteria in s 36(2)(a) and/or s 36(2)(aa) of the Act.
Legislative History of section 36(1C)
The legislative purpose behind the enactment of s 36(1C) of the Act was to codify the effect of Article 33(2) of the United Nations Convention Relating to the Status of Refugees. This Convention was adopted in 1951 and was, in turn, amended in 1967 by the Protocol Relating to the Status of Refugees (‘Refugees Convention’).
It is worth outlining the relevant components of Article 33 of the Refugees Convention. Article 33(1) says:
‘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.’
Article 33(2) of the Refugees Convention places limits on the extent to which a refugee can avail himself of the grounds stipulated in Article 33(1):
‘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 judgment of a particularly serious crime, constitutes a danger to the community of that country.’
When the then-new s 36(1C) was sought to be introduced into the Act, the relevant Explanatory Memorandum to the intended amendment said the following:
‘The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa. The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of ‘refugee’ but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa. This criterion is consistent with the ineligibility criteria under paragraph 36(2C)(b) in relation to the complementary protection provisions in the Migration Act.’[15]
[15] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, page 12.
The then-Minister’s Explanatory Statement was tabled introducing the proposed s 36(1C) (inserted by the Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Bill more generally) into the Act, he wrote that it created: ‘…a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention.’[16] The net effect of s 36(1C) is thus to replace the previous methodology of how a person was determined to be a refugee. Previously, such a determination was made by reference to the Refugees Convention. After the introduction of s 36(1C), that determination was able to be made without reliance on the Refugees Convention or any external interpretations of it.
[16] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, page 10.
As will be noted from the abovementioned reference to, respectively, Articles 33(1) and (2) of the Refugees Convention, the determination of whether someone could be found to be a refugee involved the application of a two-step determination. First, there had to be a determination of whether a person ‘has been convicted by final judgment of a particularly serious crime’. If the answer to that question is in the affirmative, a determination must then be made about whether that person constitutes a danger to the community. An identical two-step approach now appears in s 36(1C) in the determination of whether a person is excluded from the grant of a protection visa.
Brief overview of the evidence
The oral evidence of Dr Annie McCluskey
As mentioned earlier, the Hearing received evidence from the aforementioned Dr McCluskey and the Applicant. In terms of evidence in chief, the totality of Dr McCluskey’s evidence comprised of the following:
‘SENIOR MEMBER: All right. Now, that just leaves Ms McCluskey and the people in the tribunal room who are, of course, Mr Associate, myself and Mr Hawker. All right. Dr McCluskey, over to you. What would you like to say by reference to any of your written material or otherwise? Go ahead, please.
DR McCLUSKEY: Okay. So, I’m assuming that you’ve had the opportunity to read some of the supporting letters and statutory declarations that both myself and the other volunteers have written over the last year and for the hearing.
SENIOR MEMBER: Yes, we have.
DR McCLUSKEY: So, the main things I’d like to say is that, clearly, in the past, the applicant has been arrested in the community because of his reoffending when he has left prison, but on almost all of the occasions, as far as I can see, he’s never had stable housing to return to. He’s not had any ongoing stable and consistent case management and mental health support, and what I’m proposing is that for him to be – to reduce his risk to the community is to help him with his stable accommodation, initially with temporary accommodation with 24 hours’ supervision for a period of about a month which is what he can afford, and that will give us time to engage him with a local community mental health team and a case manager with Centrelink with his Medicare entitlements and to find more stable accommodation where he can live, and I think with support – social support as well as stable accommodation and consistent medical – mental health support, he’s going to be much more able to cope in the community. He’s not at any point had any rehabilitation for his alcohol abuse, either in the community or when he’s been in detention or in prison. So he’s lever [sic] learned to budget, he’s never learned how to cook, or what to do with his time when he’s not involved in drinking and so forth.
So the last couple of years have been discussing with him the accommodation options, the support options given the absence of family, to help him live a more enjoyable life and stop this cycle that he’s been in. So as you can probably see, he’s quite remorseful for what he’s done, but he has significant cognitive problems from his drinking over the years and from his schizophrenia over the years, which makes it difficult for him to pay attention for a long time. So it’s good that he has a break at the moment. And, as a consequence of his cognitive problems, he also loses his temper quite easily. So stable accommodation, stable social supports which myself and several volunteers are able to offer. Where the accommodation will be remains to be seen, depending on when and if he is moved out of Villawood, so from 2020 to now, things, you know, have changed with some of the service providers, but there’s enough services around for me to be able to link in with the different networks. And I think that’s the main thing to say. I know that the accommodation options – there’s enough accommodation options wherever he should live, and there are enough volunteers that I have access to, to help with the supervision initially and long-term, and in-program.
SENIOR MEMBER: Anything further?
DR McCLUSKEY: No, I think that’s probably sufficient.
All right, thank you. I’ll just ask the minister’s representative, Mr Hawker, whether he has any questions for you by way of cross-examination. Mr Hawker.’[17]
[17] Transcript, p 6, lines 13-47; p 7, lines 1-20.
Dr McCluskey was briefly cross-examined. The cross-examination proceed thus:
‘MR HAWKER: Thank you. Dr McCluskey, it’s Matt Hawker for the minister speaking; can you hear me clearly enough?
DR McCLUSKEY: I can, yes.
MR HAWKER: Thank you. Just picking up on one of the last things that you were talking about in terms of his cognitive difficulties, and you spoke about what you understand to be his significant cognitive problems, and you said because of the cognitive problems, he loses his temper quite easily. Can you give the tribunal an idea as to what you’re talking about there? And when you say that – are you saying that because that’s things you’ve seen, or is it things that you’ve read about him?
DR McCLUSKEY: No, you’ll observe it over the next few hours. He has a limited tolerance, frustration tolerance, which is just the nature of his schizophrenia and his cognitive impairments over the years, so he gets impatient. Finds it difficult to sit still for a while, likes to walk around. So yes, if somebody’s shouting loudly, he can find that disturbing. Yes, so they’re the sorts of evident behaviours that you’ll probably see over the next couple of days.
MR HAWKER: All right. Okay, sure. And just finally, Dr McCluskey, you’ll recall you gave evidence on the last occasion last year before the tribunal about this matter?
DR McCLUSKEY: I do, yes.
MR HAWKER: And I have a copy, and the tribunal has a copy of the transcript of what you said to the tribunal on the last occasion, as well as the statutory declaration?
DR McCLUSKEY: Yes.
MR HAWKER: And having listened to you really closely today, what you’re telling the tribunal today aligns with what you told the tribunal on the last occasion?
DR McCLUSKEY: Yes.
MR HAWKER: And you’re obviously happy for the tribunal to consider your evidence today and also take into account as relevant the evidence that you gave the tribunal on the last occasion?
DR McCLUSKEY: Yes, correct.
MR HAWKER: Okay. All right. And you’d be aware that questions were asked of you, on the last occasion, by both the tribunal and the lawyer that was representing the minister at the time?
DR McCLUSKEY: Yes. Yes, I’ve got lots of notes from that.
MR HAWKER: Yes, all right. And in those circumstances, because we have that question and answer, question and answer, I don’t have any other further questions for you; just to confirm that you’re aware of that, and that’s a matter that I wanted you to be aware of in the event that the tribunal was to place any emphasis on that aspect of the evidence before it?
DR McCLUSKEY: Okay, yes. I understand.
MR HAWKER: All right.
SENIOR MEMBER: All right, Dr McCluskey, anything to say by way of reply? Anything further?
DR McCLUSKEY: No, nothing else.’[18]
[18] Transcript, p 7, lines 26-45; p 8, lines 1-26.
The oral evidence of the Applicant
After the Applicant was duly sworn, I invited Dr McCluskey to put any questions to the Applicant by way of evidence in chief. This is what transpired:
‘SENIOR MEMBER: Thank you. All right. Now, Dr McCluskey, it’s back over to you for any questions that you might have for the applicant by way of evidence-in-chief. So now is the time, Dr McCluskey.
DR McCLUSKEY: No, I have nothing I wanted to ask.’[19]
[19] Transcript, p 9, lines 21-25.
There followed an invitation from me to the Respondent’s representative to put any questions to the Applicant by way of cross-examination. This is what transpired:
‘MR HAWKER: Yes. Thank you, Senior Member. Mr Applicant, my name is Matt Hawker. I’m the lawyer for the Minister today. Can you hear me clearly enough?
INTERPRETER: Yes.
MR HAWKER: Okay. Now, you gave evidence to the tribunal last year on 30 June about this matter, and do you recall the lawyer at the time had lots of questions for you and you gave lots of answers to those questions?
INTERPRETER: Yes.
MR HAWKER: And would you say that when you were giving that evidence last year, you were telling the truth?
INTERPRETER: Yes. The questions that he asked of me, I replied him, and I fully gave him.
MR HAWKER: Yes. And you would say to this tribunal that it remains the truth today?
INTERPRETER: Yes.
MR HAWKER: Okay. And in the big bundle of documents that was sent to you, there’s a record of that evidence.
INTERPRETER: Yes (indistinct).
MR HAWKER: And rather than me ask you the same questions and go through the same topics, you’re happy for the tribunal to consider that record as your evidence today?
INTERPRETER: Yes.
MR HAWKER: All right. And do you remember at the last hearing there were a number of other people who gave evidence, including a Dr Ellis – Dr Andrew Ellis?
INTERPRETER: Yes. Dr Ellis.
MR HAWKER: Yes. And you would be aware that Dr Ellis has provided three written reports?
INTERPRETER: Yes (indistinct) provided everything about me and he provided to them.
MR HAWKER: Yes. And in addition to the written reports, he also spoke to the tribunal on the last occasion as well.
INTERPRETER: Yes, I do remember.
MR HAWKER: And we have a copy. We have a record – a written record of what he told the tribunal on the last occasion in the material that’s now before the tribunal.
INTERPRETER: Yes.
MR HAWKER: And when the tribunal comes to make its decision this time, you would like the tribunal to consider that evidence of Dr Ellis, wouldn’t you?
INTERPRETER: Yes.
MR HAWKER: All right. Thank you, Mr Applicant. I don’t have any further questions for you.
SENIOR MEMBER: Okay. Now, Dr McCluskey, anything by way of – Dr McCluskey, anything by way of re-examination or further questions for the applicant?
DR McCLUSKEY: No, nothing else.’[20]
[20] Transcript, p 9, lines 37-47; p 10, lines 1-45; p 11, lines 1-14.
Distillation of the issues
The legislative pathway for this Applicant to be eligible for the grant of the Protection visa can be stated thus:
(a)Section 36(1A)(a): For the grant of a Protection visa, the Applicant must satisfy the following criteria:
(i)pursuant to sub-section (1B) that he has not been assessed by the Australian Security Intelligence Organisation as a direct or indirect risk to Australia’s security. There is no suggestion or assessment of the Applicant representing any such risk;
(ii)pursuant to sub-section (1C) that he is not a person whom the Respondent Minister considers, on reasonable grounds:
- pursuant to s 36(1C)(a) is a danger to Australia’s security. There is no contention before the Tribunal that the Applicant represents any such threat; or
- pursuant to s 36(1C)(b), having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.
AND
(b)Section 36(1A)(b): For the grant of a Protection visa, the Applicant must satisfy one of the criteria in s 36(2). For present purposes, the material contains a Protection Visa Decision Assessment dated 11 March 2020 wherein a finding was made that the Applicant satisfies the criterion contained in s 36(2)(aa).[21] Specifically, the Protection Visa Assessment dated 11 March 2020 adopted this Tribunal’s earlier finding on 21 November 2017 that this Applicant was a refugee within the meaning of s 5H(1) of the Act.
(c)Section 36(2C) provides that the Applicant is not taken to satisfy the complementary criterion assessment contained in s 36(2)(aa) if, inter alia, pursuant to s 36(2C)(b), the Minister considers on reasonable grounds that:
(i)the Applicant is a danger to Australia’s security; or
(ii)having been convicted by a final judgement of a particularly serious crime, the Applicant is a danger to the Australian community.
[21]G1, p8.
It will be noted that the two conditioning criteria in s 36(2C)(b) are substantially similar to those contained in s 36(1C). The only difference is that the second conditioning criterion in s 36(2C)(b)(ii) contains the words ‘…(including a crime that consists of the commission of a serious Australian offence or serious foreign offence)…’. There is no suggestion the Applicant has committed a serious foreign offence.
Therefore: (1) the same reply (and finding) I made for s 36(1C)(a) can be made for section 36(2C)(b)(i); and (2) the only residual issue for determination by this Tribunal is that contained in ss 36(1C)(b) and 36(2C)(b)(ii), namely whether the Applicant, having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.
In Australia, it is well-settled that there are two separate sub-questions raised by s 36(1C)(b).[22] First, has the Applicant been convicted by a final judgment of a particularly serious crime? Second, if the first question is answered in the affirmative, does the Applicant represent a danger to the Australian community?
[22] See SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174 (‘SZOQQ’) [52] (Jagot and Barker JJ, Flick J agreeing at [28]) (set aside on different grounds: SZOQQ and Minister for Immigration and Border Protection (2013) 251 CLR 577); DOB18 and Minister for Home Affairs (2019) 269 FCR 636 (‘DOB18’) [49] (Logan J); WKCG and Minister for Immigration and Citizenship (2001) 110 ALD 434 (‘WKCG’) [29] (Deputy President Tamberlin QC).
The first question is interpreted as, essentially, a jurisdictional fact. If there is one serious Australian offence, then the second question – whether the Applicant is a danger to the Australian community – arises for consideration.
I will consider each question in turn.
Sub-Issue 1: Has the Applicant been convicted by a final judgment of a serious crime?
There is little to cavil with the proposition and finding that this Applicant has been convicted by a final judgment of a particularly serious crime. It is plain from the criminal history that the Applicant has two convictions for very serious offences against the person. Those offences comprise:
·December 2007, based on a conviction for Maliciously wound person with intend to inflict GBH, the Applicant was sentenced to a custodial term of two years and 10 months;
·March 1992: based on a conviction for Maliciously inflict grievous bodily harm, the Applicant was sentenced to a custodial term of 12 months.
The above offending – at the time the applicant was sentenced for it – carried a maximum penalty of seven years imprisonment.[23]
[23] Pursuant to ss 33 and 35 of the Crimes Act 1900 (NSW).
In addition to the above two convictions, the Applicant has convictions for:
·Assault occasioning actual bodily harm in July 2014, March 2012, November 1995 and September 1990;
·Assault police officer in execution of duty in January 2014 (x2) and March 1999.
Offences of this nature attracted a maximum penalty of five years imprisonment at the time the Applicant committed them.[24]
[24] Pursuant to ss 59 and 60 of the Crimes Act 1900 (NSW).
I am therefore satisfised that the Applicant has been convicted by a final judgment[25] of a ‘particularly serious crime’[26] and that such ‘particularly serious crime’ has its basis in the Applicant’s commission of a ‘serious Australian offence’.[27] This is because the Applicant’s respective convictions particularised at paragraphs 49 and 51 of these Reasons involved violence against a person[28] and each of those offences were punishable by imprisonment carrying a maximum term of not less than three years[29] in turn, it can also be safety found that the mirror provisions appearing at ss 36(1C)(b) and 36(2C)(b)(ii) have been satisfied to the extent that the Applicant has been convicted by a final judgment of a ‘particularly serious crime’.
[25] With reference to the sentences he has received as particularised at paragraphs 49 and 51 of these Reasons.
[26] Pursuant to s 5M of the Act.
[27] Pursuant to s 5M(a) of the Act.
[28] Pursuant to s 5M(a)(i) of the Act.
[29] Pursuant to s 5M(a)(iii) of the Act.
I will now turn to the second question contained in ss 36(1C)(b) and 36(2C)(b)(ii).
Sub-Issue 2: Whether the Applicant is a danger to the Australian community?
As the Full Court of Australia explained in SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174, s 36(1C) of the Act does not allow me to engage in a ‘balancing exercise’. I cannot weigh the consequences for an applicant of, for example, refoulement, against whatever danger an applicant might pose:
‘[…] we see the language of Art 33(2), construed in the context of the Refugees Convention as a whole, as intractable. The ordinary meaning of Art 33(2) (subject to one matter) is clear. The benefit of the duty against refoulement in Art 33(1) cannot be claimed by a refugee if the circumstances specified in Art 33(2) are present. The structure and text of the provisions do not permit any balancing exercise.’[30]
[30]SZOQQ [49] (Jagot and Barker JJ), [27] (Flick J, agreeing).
For reasons that follow, I am of the view that an application of the four abovementioned considerations in WKCG to the instant facts necessarily results in a finding that this applicant represents a danger to the Australian community.
The seriousness and nature of the crimes committed, the length of the imposed, and any mitigating or aggravating circumstances.
The Respondent, in its SFIC has identified six offending incidents in the Applicant’s criminal history that squarely and adversely (for the Applicant) fall within the ambit of this first consideration. First, there is the sentence of 12 months imprisonment imposed on the Applicant in March 1992 in the NSW District Court. This offending involved the Applicant committed a very serious offence against the person of his then defacto partner. At the time of the assault, the defacto partner was carrying their child. The Applicant sought to sexually impose himself on the defacto partner and she resisted those advances on the basis of her being pregnant.
That rejection did not resonate well with the Applicant who then proceeded to very seriously and dangerously attack the victim in extreme physical terms. She suffered serious and significant physical injury as a result of what the sentencing judge described as ‘..patently a very violent attack, and one in no way provoked in any relevant by the victim’[31]. The sentencing judge’s remarks included reference to evidence from a Community Corrections Officer that any rehabilitative effort directed towards the Applicant had failed. One would reasonably expect an offender would welcome rehabilitative intervention for factors predisposing that offender towards (1) grabbing a pregnant woman by the arm; (2) pushing her against the wall; (3) hitting her with a closed fist between the eyes such that she – while pregnant – fell to the ground; and (4) while she was on the ground, kicking her in the face six or seven times. But not, it would seem, this Applicant. There is a quite distributing facial photographic depiction in the material showing the appalling state of the victim’s face follow the violence perpetrated upon her by the Applicant.
[31] G1, p 889.
Second, there is the sentence of two years and 10 months imprisonment imposed on the Applicant by the NSW District Court in December 2007 for ‘Maliciously wound person with intent to inflict GBH.’ Once again, the Applicant sought to impose himself, in an extremely physical way at the point of a disagreement or impasse with another person. The Applicant punched the victim in the head three times and then grabbed a knife from the kitchen and stabbed the victim. The sentencing judge found that the victim’s injuries were ‘extremely serious’[32]. It is worth quoting the sentencing judge’s detailed summary of the life-threatening injuries suffered by the victim which saw him hospitalised for over five weeks:
‘He arrived at the emergency department of St Vincent’s Public Hospital shortly after 3am on [day redacted] April 2007 and was admitted at 3.25am. On arrival he was observed to have a three centimetre wound to his right upper abdomen with a omentum and small bowel protrusion. He also had an eight millimetre stab wound to his right thigh. In the opinion of Dr Smith, the surgical registrar, who first examined him and treated the victim on his arrival at St Vincent’s Hospital, the stab wound on the victim’s right thigh had been suffered in the hour prior to his arrival at the hospital.
As a result of the stab wound to the stomach the victim suffered life threatening injuries to his liver, portal vein and inferior vena cava and associated shock. He required five laparotomies to repair the damage caused by the stab wound to the stomach and to control extensive haemorrhages. He underwent a splenectomy and a splenectomy and a tracheostomy and required massive blood transfusions, a total of over ninety units of red blood cells were involved. He was in an induced coma and in the intensive care unit for approximately two weeks following his admission. He was initially not expected to live. The victim has extensive scarring on his stomach as a result of stabbing and its sequelae. He was discharged from the hospital on [day redacted] May 2007.’ [33]
[My emphasis and underlining]
[32] G1, p 893-894.
[33] Ibid.
The sentencing judge was of the view that there were three mitigating circumstances comprising (1) the Applicant’s perception of a need to defend his property; (2) the Applicant’s acceptance that his extreme physical response towards the victim was excessive in the circumstances; and (3) immediately after inflicting the stab wounds on the victim, the Applicant called the ambulance to attend the scene. Be that as it may, the sentencing judge found that: ‘Objectively this was a very serious offence. In my view, the injury involved here is towards the upper end of the range of seriousness for such offences.’[34]
[34] Ibid, p 896.
Third, there is the sentence of 12 months imprisonment imposed on the Applicant by a NSW Local Court in March 2012 for ‘Assault occasioning actual bodily harm (DV)’. The victim of the Applicant’s violent offending on this occasion was a woman who resided with him for about three and half years and who had acted as his carer. The relevant NSW Police Facts Sheet records the offending thus:
‘The accused [the Applicant] and victim [name of redacted] have resided together in the same Unit for about 3 and 1/2 years. The victim has been acting as a carer for the accused. They have only been flatmates, and the relationship is not one of an intimate nature.
About 7:30pm on [day redacted] September 2011, the victim and accused were both seated in the lounge room of their unit in [address redacted], when there was a discussion about living arrangements. The victim spoke to the accused about him moving out and her approaching the Housing Commission about him moving out. The victim had alleged that he had been assaulting her for the past 3 weeks.
The accused got up and walked over to the victim where he then punched the victim in the back of her right shoulder causing her pain. The accused then punched the victim with a clenched fist to her mouth causing her lip to bleed. The accused then hit the victim over the head with his fist.
The accused then kicked the victim in the right ankle and right knee. The victim's ankle was swollen as a result. He then kicked the victim in the right hip. This was painful as the victim has had a hip replacement.
The accused then grabbed the victim by the neck of her jumper with his right hand and pulled her toward him. The accused then put his hands around the victim's throat and applied pressure. The victim felt scratching on her throat from his hands.
The victim then clawed at the accused and pushed him away. The victim tried to get him to move away from her by offering to get him dinner if he went into his room.
Eventually the accused went into his room for a period of time while she made the accused some dinner.
About 11:00pm same day the accused re-entered the lounge room where the victim was. There the accused said, "Where's my wine? Where's my wine? I'll go tonight, give me my keycard." The victim replied to him, "I don't have your wine."
The accused grabbed the victim by her jumper and hit the victim no less than 6 times to her head causing her immediate pain.
The accused then went into the victim's room and began throwing things about looking for papers of his. The victim then called police.
A short time later police arrived where they saw that the victim had dried blood on her lower lip and her lips appeared to be swollen. Police also saw a red mark on her chest near the throat.
When asked what happened the victim stated, "He hit me. He punched me a number of times. He also stomped on my foot." The victim also showed bruising on her foot to police.’[35]
[35] G1, pp 1210 -1211.
The learned sentencing Magistrate noted the length of time during which the Applicant had been violent towards the victim. His Honour also noted that the Applicant had ‘…a lengthy record for matters of violence going back as far as, it would appear, 1990, continually coming before the court for matters of violence.’[36]
[36] G1, p 907.
Fourth, there are the multiple sentences imposed on the Applicant by a NSW Local Court in January 2014. There were convictions for three offences against the person including two assaults committed on a police officer and two common assaults. There is also a conviction for ‘Destroy or damage property’. The totality of custodial time imposed on the Applicant on that sentencing day was 15 months. With particular reference to the ‘Assault’ conviction against the female hotel manager, it is, to my mind, significant that the Applicant struck that female victim with an open hand to the side of the face following a quite reasonable direction from her to him to leave the premises. The two assault-type offences on the police officers represent nothing less than a direct challenge to the lawful authority represented by those officers.
Fifth, in July 2014, the Applicant was sentenced to a cumulative custodial period of imprisonment of 18 months by a NSW Local Court. This offending was variously charged as (1) ‘Assault occasioning actual bodily harm; (2) ‘Destroy or damage property with a value of greater than $2000 but no greater than $5000’; (3) ‘Steal from the person’; (4) ‘Common assault’; and (5) ‘Possess prohibited drug’. This offending involved the infliction of injury to its victims and was committed while the Applicant was on parole for one of the offences before the Court on this sentencing day.
In terms of an impression to be taken from the offending, the learned Magistrate formed the view that (1) with reference to the nature of the offending: ‘…when one reads those facts and the way in which that offence was carried out one can only reach the conclusion that it would have been a pretty terrifying act especially for someone who was labouring under the effects of alcohol’[37]; (2) His Honour thought the offending conduct: ‘…further [amplified] his alcohol dependence issue and ongoing mental health problems’[38]; and (3) with reference to the assault convictions, His Honour thought their severity lay: ‘Somewhere under the midrange of the scale of objective seriousness of offending for matters of that kind…’.[39]
[37] Ibid, p 912.
[38] Ibid, p 913.
[39] Ibid.
Sixth, in June 2015, a NSW Local Court sentenced the Applicant to a cumulative term of imprisonment of six months resulting from respective convictions for (1) ‘Common assault’; and (2) ‘Stalk/intimidate intend fear physical etc harm (domestic).’ Once again, the Applicant sought to impose himself on a perceived impasse by violent and potentially fatal means against the person with whom he found himself in disagreement. The conduct involved him securing the victim by the throat, placing him up against a wall and pointing that knife to the victim’s throat with a threat to stab him.
It is, to my mind, notable that the learned Magistrate not only refused to grant bail, but that His Honour as part of the justification for that refusal confirmed that he was:
‘…not satisfied that a grant of bail would protect either the victim in this matter or other members of the community when I look at the defendant’s criminal record and ACCORDINGLY I AM NOT OF THE OPINION THAT THERE IS ANY OTHER CONDITION THAT WILL MITIGATE THE UNACCEPTABLE RISK AND BAIL IS REFUSED.[40]
[Higher case script in original]
[40] G1, p 919
In addition, His Honour noted the Applicant’s ongoing and unresolved issues with substance abuse. This can be seen in the exchange between His Honour and the Applicant’s representative during the sentencing hearing:
‘[Mr Underwood] That’s for follow up on his medication, take such prescribed medication as appropriate, abstain from alcohol and I’ve spoke to him about this and he agrees he’s got an alcohol problem. In fact, his disability pension is for chronic alcoholism.
His Honour: So he’s not going to abstain from alcohol then is he? It doesn’t matter what I say, he’s going to go and have a drink. That’s the nature of alcoholism.’[41]
[41] Ibid, p 918.
The learned sentencing Judge was in no doubt about the nature and severity of the Applicant’s offending and how the sentencing regime should be predicated:
‘I am of the opinion that, when I take into account the nature of this matter as outlined in the facts and also his record, that there is no other appropriate sentence other than a term of full time imprisonment. There is a needs [sic] to be a message sent to [the Applicant] that violence is not going to be tolerated at all.’[42]
[42] Ibid, p 920.
The following factors are informative about the nature and seriousness of the Applicant’s crime, including any aggravating circumstances to be gleaned from that conduct, together with the nature and extent of the sentences imposed for it:
·there is little to cavil with the proposition (and finding) that the totality of the Applicant’s offending must be found to be very serious;
·there is very serious offending against the person and, in particular, quite cowardly and wanton offending against females;
·the Applicant’s offending is indicative of a failure to accept and respect the lawful authority governed by legal documents compelling him to do, or refrain from doing, a particular thing;
·he has failed to develop any measure of respect for the property of others with his history containing, as it does, numerous convictions for offences against the property of others;
·especially for present purposes in terms of this Tribunal assessing whether the Applicant is a danger to the Australian community, it is prescient to observe that:
ohe has failed to grasp the opportunity inherent in a graduated sentencing regime comprising the imposition of non-custodial terms with an opportunity to rehabilitate, but only to re-offend with those resulting convictions being punished by custodial terms;
ohe has experienced little or no deterrent effect from custodial terms imposed on him;
oat least one judicial sentencing officer (in June 2015) was not prepared to grant bail to the Applicant on the basis that any release back into the community on that basis did not adequately protect either the victim or the community having regard to the Applicant’s offending history;
·there is a marked absence of clinical evidence indicative of this Applicant’s issues pre-disposing him to one form of substance abuse or another now being (or having been) the substance of any clinical intervention, remedial treatment or management and ongoing prognostic control;
·this Applicant’s offending was predominantly committed while under the adverse influence of alcohol and/or illicit drugs. This absence of clinical verification that those issues are no under any sort of control unquestionably speaks to the on-going danger he represents to the Australian community;
·any suggestion or argument that he has not partaken in either alcohol or illicit drugs while removed from the community must be rejected. The only objective measure of his claimed rehabilitation from substance abuse is to test that claim while he is in the community. This is yet to occur;
·the imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[43] This Applicant’s criminal history discloses some 22 separate sentencing episodes on at least 10 of those sentencing episodes, judicial sentencing officers punished his offending by custodial terms. The cumulative total of head custodial time imposed between September 1990 and June 2015 amounts to approximately 10 years.
[43] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22].
The lack of any mitigating circumstances
The next question involves whether the Applicant’s difficulties with substance abuse together with his mental health symptomatology can now be accepted as mitigating factors of a kind that may lessen his moral culpability for the offences he has committed. For reasons that follow, I am of the view that this question must be resoundingly answered in the negative.
Mental health symptoms as a mitigating circumstance
The weight of clinical opinion before the Tribunal is that since its diagnosis in the late 1990s, this Applicant has suffered from chronic and treatment-resistant paranoid schizophrenia. As best as I understood his submissions to the previous ventilation of this matter in this Tribunal, we are urged now to accept that the Applicant’s diagnosed schizophrenia has been a mitigating circumstance of his past offending but that it no longer represents any such element because of the Applicant’s claim to be compliant with the regime of anti-psychotic medication prescribed to him.
The fatal difficulty with this contention is that it lacks support from both the Applicant’s criminal history (post-diagnosis) together with prevailing clinical opinion. As I have sought to demonstrate earlier in these reasons, it has not escaped the minds of a number of sentencing judicial officers that much of the Applicant’s offending has been motivated or caused by his psychological symptomatology. But such has been the persistently repetitive nature of his offending history, that judicial sentencing officers have felt compelled to depart from any inclination towards favouring the Applicant with non-custodial terms due to the claimed mitigating factor of mental health difficulties. Instead, those judicial sentencing officers have felt compelled to impose custodial terms, and often significant individual or cumulative custodial terms.
The state of the medical evidence does not point to this Tribunal acceptance of the Applicant’s mental health symptomatology as a mitigative factor behind his offending. As long as November 2007 the forensic psychiatrist, Dr Rosalie Wilcox made reference to the Applicant’s then ten year history of chronic paranoid schizophrenia, whatever hallucinations he may have been experiencing at the time of his offending could not be safely founds to be causative of that offending:
‘He has a 10 year history of chronic paranoid schizophrenia. His illness has been characterised by prominent auditory hallucinations and persistent persecutor' delusions. His management has been complicated by his dependence on alcohol and his poor compliance with prescribed medication.
His only periods of abstinence have occurred during prior periods of incarnation. Up until now he has had no desire to stop drinking as he has relied upon alcohol as a form of self medication preferring it to his prescribed medication.
…
[The Applicant] acknowledged that he was hallucinating at the time of the alleged offence however the hallucinations were not command in nature. It is probable that due to the presence of the hallucinations and the degree of intoxication that his perception of danger was increased and his judgment and capacity to control his behaviour was impaired.’[44]
[My emphasis]
Alcohol abuse as a mitigating circumstance
[44] G1, p 1171.
The Applicant’s relationship with alcohol derives from his childhood. As will be noted from the range of sentencing remarks quoted earlier in these Reasons, a number of judicial sentencing officers were alive to the consistently appearing theme of the Applicant’s commission of offences while intoxicated. Dr Wilcox was similarly alive to the extent to which alcohol abuse was causative of the Applicant’s offending and noted that ‘In order to reduce the risk of re-offending [the Applicant] will need to maintain abstinence from alcohol…’[45]
[45] G1, p 1171.
Dr Andrew Ellis is a forensic psychiatrist who has examined the Applicant on several occasions and who has produced three reports respectively dated 6 December 2019[46], 29 August 2020[47] and 18 November 2020.[48] In the first of his reports, Dr Ellis opined that ‘[the Applicant’s] problems with instability (cognitive, behavioural and affective), his schizophrenia and alcohol use disorder dominate as main risk offenders for future violence.’[49] More significantly, Dr Ellis was not prepared to attribute the status of mitigating circumstances towards either alcohol abuse or schizophrenia in the context of the Applicant’s offending. Rather, Dr Ellis opined that:
‘[The Applicant’s] offences can be understood as resulting from poor impulse control and impaired judgment secondary to cognitive symptoms of chronic schizophrenia and neurocognitive impairment secondary to chronic alcohol abuse.’[50]
[46] Ibid, pp 180-195.
[47] Ibid, pp 1761-1762.
[48] Ibid, pp 1768-1779.
[49] Ibid, p 193.
[50] Ibid, p 194.
In other words, Dr Ellis thought the primary driver behind the Applicant’s pre-disposition to very seriously offend was to be found in poor impulse control and impaired judgment. The elements of schizophrenia and the abuse of alcohol ranked secondarily to his inability to properly gauge a perceived impasse and to otherwise refrain from impulsively – and often very dangerously – resorting to extreme physical means to impulsively resolve that impasse.
It can be safely found that the Applicant’s pre-disposition to abusing alcohol should not be accepted as a mitigating circumstance behind his past offending. Of significance is Dr Ellis’ opinion expressed in his most recent report dating from 18 November 2020 wherein Dr Ellis opined that the Applicant’s insight into his substance abuse disorder was ‘superficial’:
‘[The Applicant] insight into his substance use disorder was superficial. He acknowledged that he had previously had an addiction to alcohol and marijuana and that it had a significant role in his past violence. However, he struggled to conceptualise how substance use might be a problem in the future. While he was able to identify that his psychotic symptoms had previously driven his substance use, he could not identify that his ongoing psychotic symptoms may make him vulnerable to future use.’[51]
[51] G1, p 1774.
It should also be noted that as far back as 2008, the New South Wales Probation and Parole Service was cautious about releasing the Applicant to parole in circumstances where his issues with alcohol remained a live and unresolved issue. In particular, it was thought in 2008 that any release of the Applicant to parole was conditional upon his admission to a program designed to deal with and regulate a parolee’s difficulties with alcohol abuse:
‘…
CURRENT SITUATION
The Authority is referred to the Revocation Prior to Release report dated 5 September 2008 in which it was requested that [the Applicant’s] release to parole be stood over until such time as accommodation became available at New Horizons supported accommodation program. Further to this report, on 19 September 2008 the co-ordinator of the New Horizons program contacted this Service to advise that a place has now become available and that it has been offered to [the Applicant], provided that he be available for admission by Tuesday 30 September 2008.
ASSESSMENT AND RECOMMENDATION
[the Applicant] has been offered the rare opportunity of inclusion in the New Horizons supported accommodation program and as such release to parole is recommended additionally conditioned by:
Condition 17: Must totally abstain from alcohol
Condition 20: Must not use or be in possession of a prohibited drug or substance.
Condition 21: Undertake urinalysis at the direction of the supervising probation and parole officer.
Condition 27: Undergo psychiatric assessment/treatment.
Condition 35: To comply with all directions of the Ryde community mental health service.
It is respectfully requested that [the Applicant] be released on Tuesday 30 September 2008 to allow this writer to provide a handover of [the Applicant] to the co-ordinator of New Horizons.’[52]
[Bold with underlining denotes my emphasis]
[52] Ibid, pp 1307-1308.
I am of the view that the significant weight of the evidence around (1) the Applicant’s mental health symptomatology and (2) alcohol abuse issues clearly and obviously weigh against the Applicant in terms of this Tribunal’s assessment of whether or not he represents a danger to the Australian community. I hold this view regardless of whether or not these two factors can now be regarded as militative elements behind his previous unlawful conduct in this country. For reasons demonstrated by the evidence, I am satisfied that the views of Dr Ellis deserve primacy: specifically, that the primary causative trigger behind the Applicant’s offending has been his poor impulse control and that his symptoms of chronic schizophrenia and alcohol abuse are secondary causative factors.
The Applicant’s recidivist risk and prospects of rehabilitation
As has been demonstrated in the evidence thus far, the Applicant is a very long way from convincing this Tribunal that the causative elements behind his offending have been, and remain, the subject of independent clinical management and control. To my mind, the evidence tells us what has caused the Applicant to offend. It does not tell us that those pre-dispositive factors are unlikely to reappear such as to cause the Applicant to again very seriously offend in the community. I agree with the Respondent’s contention: the Applicant has clearly and persistently represented a danger to the Australian community.[53] There is little or nothing in the material of any convincing nature to indicate this pattern will not be replicated were he returned to the Australian community.
The findings of Dr Ellis
[53] R1, p 18, para [52].
Of concern is Dr Ellis’ opinion that this Applicant’s psychopathy contains certain pre-dispositive elements behind his offending such that those factors must remain the subject of professional intervention if there is to be any effective remediation of the Applicant’s recidivist risk. Dr Ellis describes these factors has ‘unchangeable’. He foresees these elements as giving rise to a range of future difficulties for the Applicant. To my mind, those future difficulties speak directly to the Applicant’s recidivist risk. This is what Dr Ellis thought:
‘[the Applicant] has a high loading of historical, largely unchangeable risk factors violence. These reflect a baseline of risk and indicate the degree to which more proximal and dynamic risk factors require professional intervention to reduce current risk. Historical factors include a diagnosis of schizophrenia, substance abuse, exposure to trauma across his lifespan, past violence, problems with relationships, problems with employment, violent attitudes and problems with treatment response and supervision. In addition, [the Applicant] has a significant number of ongoing risk factors for violence including sustained problems with insight, treatment resistant mental illness, future problems with professional services and plans, future problems with his living situation and future problems with personal support and coping.’[54]
[My emphasis and underlining]
[54] G1, p 193.
Dr Ellis also thought that whatever level of abstinence from alcohol the Applicant has been able to demonstrate has been achieved in the closed confines of either prison or immigration detention. Dr Ellis was of the view that it is not possible to assess the Applicant’s recidivist risk in the relatively artificial environment of prison/immigration detention. It is clear that Dr Ellis thought the only genuine way of assessing the Applicant’s recidivist risk is for the Applicant to be (theoretically) returned to the community, exposed to freely available alcohol and to see what his recidivist risk would then be. Of further concern is Dr Ellis’ observation that the Applicant has abjectly failed to maintain any pattern of stability and compliance in terms of abstaining from alcohol when in the mainstream Australian community:
‘His current abstinence from alcohol has occurred due to his placement in a controlled environment and it has apparently reduced his level of instability. As a result, his ability to engage with treatment and supervision is likely to be improved. We have not been provided with any information about his recent functioning or behaviour hence we are unable to fully assess the contribution of his current functioning to overall risk. [the Applicant] has ongoing significant mental illness with poor insight and historically he has been unable to maintain stability and compliance in a community setting when he can access alcohol.’[55]
[My emphasis]
[55] Ibid, p 194.
In his most recent report dated from 18 November 2020, Dr Ellis provided a very informative ‘Risk Synopsis’. He repeated the Applicant’s poor impulse control and impaired judgement as the primary causative drivers behind the Applicant’s offending. He thought the Applicant’s prospects of successfully abstaining from alcohol and substance misuse will be heavily dependent on external factors. Those external factors were expressed as (1) compliance with medication; (2) ongoing engagement with professional clinical support; and (3) involvement with community support groups who can assist with overseeing his management by clinicians:
‘Risk Synopsis
…
[the Applicant’s] past violent offences can be understood as resulting from poor impulse control and impaired judgment secondary to cognitive symptoms of chronic schizophrenia and neurocognitive impairment secondary to chronic alcohol abuse. It is also possible that [the Applicant’s] violent behaviours and continued alcohol use are a response to his experiences of violence and victimisation as a child. His alcohol use began in his early teens, possibly as a way to regulate high levels of anxiety from childhood trauma and neglect. This behaviour then continued as an adult partly due to a physiological dependence on alcohol, and partly due to the added stress of psychotic symptoms.
[the Applicant’s] risk of future violence in the community will be heavily dependent on his ability to abstain from alcohol and substance use. Given his cognitive impairments, it is likely that this will be heavily dependent on external factors, such as compliance with his antipsychotic medication and ongoing engagement with professional services and supports. The provision of assertive community supports such as those outlined by Ms McCluskey and The Salvation Army will significantly reduce [the Applicant’s] future risk of violence, and thus the danger he may pose to the community.’[56]
[Underlining in original, my emphasis]
[56] G1, p 1777.
The resulting question involves an assessment of the extent to which any factors militating against the Applicant re-offending will supersede the factors pre-disposing him to offend. In this regard, the outlook for the Applicant is not a positive one. Those positive militative factors against the Applicant re-offending were identified by Dr Ellis to comprise:
·Treatment: Dr Ellis thought that this Applicant must be the subject of sustained ‘assessment in terms of his neuropsychological functioning, including adaptive functioning and cognitive capacity to help inform future risk management planning…’[57] Dr Ellis spoke of ‘day-to-day supports [the Applicant] will require in the community.’[58] He spoke of the critical necessity of the Applicant complying with his prescribed regime of anti-psychotic medication ‘…with use of long – acting injectable anti-psychotic’[59] medication. He also spoke of the Applicant engaging with community groups that offered psychological support for drug and alcohol abusing patients together with those groups which offer support for refugees with trauma.
The unfortunate reality for this Applicant is that he has been and remains, a very long way away from satisfying this Tribunal that these treatment elements as identified by Dr Ellis have been or are in place now or that they will be in place were the Applicant to be returned to the community.
·Placement and Restrictions, Dr Ellis spoke of the necessity for placing the Applicant in ‘Stable accommodation in supported independent living environment with adequate supervision in a pro-social environment.’[60] This finding appearing in the report of Dr Ellis dating from November 2020 must be read and understood with the recommendation appearing in his report from December 2019. In the earlier report Dr Ellis thought that the Applicant would benefit from a community treatment order (‘CTO’) and supported accommodation and mental health case management. Dr Ellis said: ‘we support the application of a CTO to ensure ongoing compliance with anti-psychotic medication and engagement with mental health services.’[61]
The significant difficulty with the Applicant’s current circumstances is that much time has elapsed since accommodation had been organised for the Applicant on his release from immigration detention by the Salvation Army. There is little or nothing in the material to suggest any such supported accommodation is now available to the Applicant through the Salvation Army or any other community-based charity or support organisation. Of additional concern is the reality that the most recent CTO applicable to the Applicant expired on 19 May 2021 so any support that may have been available to him via a CTO has now evaporated.
·Monitoring: Dr Ellis recommended regular Urine Drug Screening Tests for alcohol to be included in the conditions for a CTO. He thought the Applicant required daily monitoring about his compliance with any prescribed regime of medication. He thought this level of monitoring was necessary ‘…given [the Applicant’s] problems with memory.’[62] Dr Ellis reiterated ‘…the need for a comprehensive medical evaluation of [the Applicant] including a full physical examination and blood tests including liver function tests.’[63]
As mentioned earlier, the most recent CTO expired almost two years ago and there is little or no prospect of regular Urine Drug Screening for this Applicant. He is nowhere near demonstrating to this Tribunal that he is the subject of daily monitoring for compliance with a regime of medication. The material has nothing to say about who will conduct any ‘comprehensive medical evaluation’ and when this is likely to occur.
[57] Ibid, pp 1777-1778.
[58] Ibid, p 1778.
[59] ibid.
[60] G1, p 1778.
[61] Ibid.
[62] Ibid, p 1778.
[63] Ibid.
Assessing a person’s recidivist risk and rehabilitative prospects are, by their very nature, forward-looking exercises necessarily referrable to a person’s prognostic outlook. Dr Ellis has independently and expertly identified the relevant prognostic elements referrable to this Applicant. It is surely beyond argument that unless the Applicant is accommodated in a controlled and supervised environment with very stringent monitoring of his compliance with prescribed medication there is every risk he will return to abusing alcohol (and most probably illicit substances as well) upon a return to the community. The respective opinions of Dr Ellis on the Applicant’s recidivist risk can only be read in one way: this Applicant’s access to intoxicating substances must be severed if he is to have any prospect of being rehabilitated.
There are two significant difficulties arising from the Applicant’s current circumstances that do not bode well in terms of his assessed recidivist risk and prospects of rehabilitation. First, he is nowhere near meeting the parameters laid out by Dr Ellis in terms of effectively dealing with his substance abuse issues. Second, the Applicant’s capacity to effectively abstain from a return to abusing alcohol (and most, most likely, illicit substances) is yet to be tested in the community. The net result is that there is no certainty that he will not do so. The result of such a finding is that the Applicant’s current level of recidivist risk cannot be known with any certainty and, put at its highest, is now no different to what it was at the time of his most recent removal from the Australian community. His prospects of rehabilitation are poor because he fails to meet virtually all of the rehabilitative markers laid down by Dr Ellis. Accordingly, this Tribunal cannot be satisfied that if returned to the Australian community, the Applicant would not again pose a significant danger to it.
The evidence of Dr McCluskey
Dr Annie McCluskey is a volunteer worker for the community organisation known as ‘Balmain for Refugees’. As mentioned earlier in these Reasons, Dr McCluskey told the Hearing before me that she adopted and relied upon the oral evidence she provided at the previous hearing of this matter in this Tribunal. She told the previous Tribunal of her intention to ensure the Applicant was placed in transitory hotel-type accommodation for a period of between two weeks to a month in the event of his return to the community. She then spoke of arranging for other volunteers at ‘Balmain for Refugees’ in an effort to prevent the Applicant from returning to using and abusing alcohol. This is what she told the previous hearing:
‘MR CLEARY: Yes, okay. And now, I think in the email that we received, there was suggestion that if the release was imminent, and I don’t suggest for any moment that it will be, if the release was imminent, he would be taken to private accommodation, is that your understanding?
DR McCLUSKEY: Yes, the original plan which changed, as I mentioned, because of COVID and accommodation with the Salvation Army, was the most recent plan that I hope will be able to be implemented is for the Bankstown Community Mental Health Team to continue to have a relationship with THYM. (indistinct) Western Sydney area. (indistinct) we’re talking two weeks to a month at most, accommodation such as private hotel or a private apartment when THYM could stay on the day that he’s released. He has the funds to be able to sign into that with anther person staying with him 24 hours a day, so that would be people like myself and other volunteers who are available to – and who care about him, who have regular contact with him such as Gwen Delister who is (indistinct) support network. That would give a few days for the mental health team and case management to become involved into (indistinct), all the things that have been allowed to – or have lapsed in the time since he was in detention. So the plan is for short term accommodation and then for medium term accommodation that a local service provider can arrange.
MR CLEARY: Now has the Salvation Army got a place in Bankstown, now has it, or?
DR McCLUSKEY: No, not the Salvation Army.’[64]
[64] G1, p 1901, lines 9-30.
Well-intended though this evidence may be, it is not suggestive of any permanence of the arrangement for the Applicant in terms of the criticality of (1) stable and environmentally controlled accommodation for the Applicant; and (2) the requirement for strict monitoring of the Applicant’s compliance with respective strict regimes of treatment and observance of prescribed medication. In short, little or none of what Dr McCluskey is offering the Applicant meets the parameters of the risk and rehabilitative factors clinically identified by Dr Ellis.
What has previously happened when the Applicant has been returned to the Australian community?
Of further concern is the reality to be taken from the material that when the Applicant has previously been released from an environment of protective custody and back into the Australian community, he has re-offended very soon after such release. His behaviour in immigration detention has been less than exemplary. There is reference in the material to him abusing a female security officer. This conduct involved him making very obscene and sexually-derived comments to that female officer which can only be read one way.[65]
Other protective factors
[65] G1, p 1723.
There is a marked absence of any family or social connections referrable to this Applicant which can now be found to be protective factors against his level of recidivist risk and rehabilitative prospects. I have earlier dealt with the well-intended evidence of Dr McCluskey about the extent to which ‘Balmain for Refugees’ – in its capacity as a volunteer service – can assist the Applicant. There is little or nothing in the material by way of letters of support, references and/or any other paper writing from anyone speaking in favour of the Applicant.
He is not entirely without familial connections. He has a son who is over 30 years of age. Concerningly, he told the previous Tribunal that at the time of that Hearing (June, July and September 2021), he had not made any contact with his adult son for over six months. The hearing before me proceeded at the end of 2022 and there is little or nothing contained in the transcript of that Hearing to suggest that relations between the Applicant and his son had become closer or that he had even contacted his son at all since the abovementioned six month date he referred to at the previous hearing.
The Applicant also has a former partner who is the mother of his abovementioned son. He told the previous Tribunal that their relationship was a violent one and that the last time he spoke with her was eight years prior to the year in which the previous hearing in this matter which was in 2021. Therefore, based on the Applicant’s evidence he has had no contact with his former partner (and mother of his son) since 2013.
It is thus not possible to reach any state of satisfaction that the Applicant’s support from ‘Balmain for Refugees’, the unconvincingly level of familial and social support he has from the broader community and the non-existent relationship he appears to have with his former partner and their now-adult son are, in any way, factors that remediate or otherwise speak positively towards his recidivist risk. None of these factors alter or condition my findings about the Applicant’s recidivist risk and level of rehabilitation I have expressed at paragraphs [86] and [87] of these Reasons.
I am of the view that if returned to the Australian community, this Applicant would most likely relapse into abusing alcohol and, most likely, illicit substances. Such a relapse would again trigger the pre-dispositive elements behind his past very serious offending. In turn, any repetition of that past very serious unlawful conduct would render the Applicant a danger to the Australian community.
The Applicant’s criminal history as a whole
It is important to note that in applying this component of the WKCG elements, DP Tamberlin QC was of the view that the words ‘having been convicted’ in s 36(1C)(b) of the Act do not limit the assessment of the ‘danger’ represented by a person to exclusively those offences going to establishing the commission of a ‘particularly serious crime’:
‘As a matter of interpretation, in my view, the reference to the words “having been convicted” operate to limit the class of persons on whom the provision operates and that the question whether a person “constitutes a danger” is a separate additional matter to be independently established. The reference to “having been convicted” is analogous to a prerequisite to the exercise of the power independent of the other criterion. This conclusion is supported by extrinsic material including the Second Reading speech and the relevant Explanatory Memorandum. Therefore, once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community. Of course, the nature and circumstances of the conviction or convictions will generally be highly relevant to the question whether the person can be described as being a “danger”. However, it is not conclusive. It is necessary to look at the person's conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions. In other words, if a person is convicted for a crime of violence and it later transpires that he or she may constitute a danger to the community in another area, such as drug trafficking, such a person may come within the exception provided for in the Article. Accordingly, I agree with the submission made by the respondent Minister and reject the submission of the applicant that the particular offences for which the person has been convicted must always somehow be causally linked to the type of danger to the community.’[66]
[66] WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 at [29].
The Applicant first came here in mid-1986. He was then aged 23 years. His offending in this country commenced in mid-1990. The totality of his offending is demonstrative of a person who has failed to experience any measure of deterrent effect from the progressively applied sentencing regime that judicial sentencing officers imposed on him. His offending is increasing in seriousness and, particularly in terms of its physically serious and dangerous consequences caused to its victims.
The evidence is concerningly and demonstrably unsupportive of the Applicant in terms of his recidivist risk and prospects of rehabilitation. This is directly reflected in the totality of his criminal history. Virtually all of his offending was committed by an inability to moderate and control his impulsive reaction to situations he perceived as impasses in his life. There is a disturbing pattern of unrestrained and unrestricted wantonly violent conduct in the Applicant’s offending. He has very seriously hurt victims and he has caused very significant damage to the property of others.
This wanton behaviour can also be seen in his convictions for physically violent offending against law enforcement officers. He has little or no apprehension of the lawful boundary or authority represented by those officers and there are no less than four convictions for such offending in his criminal history. This conduct represents a direct challenge to the lawful authority represented by those officers and, in many ways, must be viewed just as seriously as his very serious offending against individual victims.
Apart from the well-intended motivations of the ‘Balmain for Refugees’ volunteer organisation, the Applicant has no familial or social support. There is no contact between him and his former partner. There is no contact between him and his adult son who is now aged over 30 years. While not expressly referred to in the evidence, it is not unreasonable to infer that the Applicant’s lack of family and social support derives from his anti-social nature and disposition spawned by his propensity to abuse alcohol and, most likely, illicit substances as well.
I am satisfied that the totality of this Applicant’s criminal history, including its extent, nature and duration, together with the sentences imposed for its commission across its history of some 25 years (i.e in sentencing terms) can only lead to a finding that his offending has been of a very serious nature and his current recidivist risk profile and poor rehabilitative prospects now render him a danger to the Australian community.
Conlcusion
I have had regard to the totality of both the written and oral material presently before this Tribunal and the Tribunal before which this application was previous ventilated. I have sought to analyse the evidence with specific reference to the relevant considerations outlined in WKCG. I can reach no other finding than that there remains a high level of risk of this Applicant very seriously and violently re-offending if returned to the Australian community. I am therefore of the view (and I find) that he remains a danger to the Australian community.
The state of the evidence before me is such that the danger that this Applicant represented before his removal from the Australian community is now no different than what it was at that time. There is next to nothing in the evidence pointing to a reduced (or prospects of a reduced) recidivist risk. There is nothing by way of recent independent clinical opinion speaking to his recidivist risk. The Applicant can point to little or no engagement with the rehabilitative process. It cannot be known with any certainty that even if he were to engage with a rehabilitative process, that it would serve to lower his recidivist risk. It cannot be reasonably expected that the Australian community should be exposed to these unknown elements and to otherwise re-experience the consequences of the Applicant’s very serious unlawful conduct perpetrated in this country between 1990 and 2015.
Decision
The Tribunal affirms the reviewable decision dated 11 March 2020 and finds that:
(3)having been convicted of a particularly serious crime, the Applicant is a danger to the Australian community within the meaning of ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act; and
(4)the Applicant is not eligible for a Protection visa pursuant to s 35(1A) of the Act.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...................................[SGD]................................
Associate
Dated: 8 February 2023
Date(s) of hearing: 28 November 2022 Applicant: Self-represented Solicitor for the Respondent: Mr Matthew Hawker (Partner) Sparke Helmore Lawyers
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