THYM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 4364

THYM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4364 (19 November 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1576

Re:THYM  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:19 November 2021

Place:Sydney

The decision under review is set aside and it is determined that the applicant is not a danger to the Australian Community for the purposes of s.36A(1C)(b) of the Migration Act 1958 (Cth).

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

Deputy President B W Rayment OAM QC

CATCHWORDS

Migration – application for protection visa – protection visa denied – applicant deemed a danger to the community – danger to community whilst in detention - Issue for determination: whether the applicant is a danger to the community – considerations – the applicants prospects of being released in the future – applicant’s medical conditions and criminal background considered - decision set aside 

LEGISLATION

Migration Act 1958 (Cth)

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

19 November 2021

1. The Minister’s delegate decided that the applicant, who arrived here from Eritrea, is a danger to the community, a finding that removes the possibility that the applicant will be granted a protection visa, but otherwise does not affect his status as a detainee.  He has been in detention for six years.

2. During the hearing the Tribunal asked the Minister’s representative whether the fact that the applicant is in detention means that under his present circumstances, he is not a danger to the community.  I do not understand the Minister’s submissions to contest that the applicant’s status as a detainee is relevant to the question of whether he is a danger to the community.

   Is the Applicant a danger to the Australian community?

3. Section 36 of the Migration Act 1958 (Cth) (the Act) is in the following terms so far as relevant:

   Protection visas--criteria provided for by this Act

   (1A) An applicant for a protection visa must satisfy:

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

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

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

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

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

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

4. Application for a protection visa may be made by persons who are in detention, and persons who are not in detention. One question which might have arisen in this matter is whether, as a matter of construction of s.36(1C), one should understand it as subject to an implied counterfactual, namely, that one should assume that the applicant for the protection visa is about to be released into the community.

5. That counterfactual is hardly applicable to the applicant in fact. The delegate has found that the applicant is a danger to the community. If the contrary was determined and a future delegate or this Tribunal on review were to find that he is owed protection obligations, whether under s.36(2)(a) or s.36(2)(aa), then under current government policy and the present state of the Act, he will not be sent back to Eritrea, in the light of s.197C of the Act. That section provides that the duty to remove a non-citizen to his or her country of origin does not apply to a person who has a protection obligation.

6. As things stand, he will not be released into the community if he succeeds or if he fails in this review.  It is unlikely that a person found to be a danger to the community will be given a visa to be at liberty in the community, under the Minister’s non-compellable and discretionary power to issue another visa to him.  If he is found not to be a danger to the Community, then the power to refuse to grant him a protection visa on other grounds will be enlivened, even if protection obligations are found to be owed to him.  He may be refused a visa under s.501 of the Act. 

7. The serious criminal offence relied upon by the Minister in his opposition to the present application also means that the applicant will not pass the character test for the purposes of s.501(6).

8. Refusal of the visa may be done by the Minister without the possibility of review in the Tribunal.  Refusal by a delegate may be reviewed in the Tribunal, but the Minister may overrule the Tribunal if it makes a decision in favour of the applicant, under s.501A of the Act.

9. As things stand, he is not likely to be released into the community in the near future. How a person in full-time custodial detention could be a danger to the community is difficult to understand.  Even if he is visited by members of the community while he remains in detention, those visits would be supervised and members of the community would not be in danger, even if the applicant were to become aggressive.

10. The basis on which the respondent submits that he is a danger to the community is that he has been an alcoholic and suffers from schizophrenia, and when he is drunk, his schizophrenia may lead him to dangerous behaviour, as it has before in at least some of his convictions.

11. His criminal record is as follows, according to his National Police Certificate[1]:

    [1] T34, page 779.

Court date	Offence	Penalty imposed
9 June 2015 Central Local Court	Common assault Stalk/intimidate intend fear physical etc harm (domestic)	3 months’ imprisonment for each offence (concurrent), to receive medication
23 March 2015 Fairfield Local Court	Behave in offensive manner in/near public place/school Wilful and obscene exposure in/near public place/school	$350 fine $800 fine
31 July 2014 Parramatta Local Court	Assault occasioning actual bodily harm Destroy or damage property >$2000 & <$5000 Steal from the person Common assault Possess prohibited drug	9 months’ imprisonment, release subject to supervision s10a conviction with no other penalty 3 months’ imprisonment 6 months’ imprisonment s10a conviction with no other penalty
24 January 2014 Central Local Court	Common assault Assault police officer in execution of duty w/o abh Destroy or damage property Common assault Assault officer in execution of duty	3 months’ imprisonment 2 months’ imprisonment 1 month imprisonment 7 months’ imprisonment, release subject to supervision 2 months’ imprisonment
9 March 2012 Central Local Court	Assault occasioning actual bodily harm (DV) Possess prohibited drug	12 months’ imprisonment, release subject to supervision s10a conviction with no other penalty
7 December 2007 Sydney District Court	Maliciously wound person with internet to inflict gbh	2 years and 10 months’ imprisonment, release subject to supervision, obey all reasonable directions with regard to mental health assessment, continue psychiatric assessment, monitoring and intervention, drug and alcohol assessment with possible entry into full time rehabilitation program and anger management treatment
14 May 2001 Downing Centre Local Court	Unlawfully possess etc a prescribed restricted substance	$200 fine
24 April 2001 Downing Centre Local Court	Fail to quit premises	$100 fine
29 January 2001 Downing Centre Local Court	Larceny value <=$2000	$250 fine
22 March 1999 Sydney District Court	Assault officer in execution of duty Common assault	Taken into account on form 1 Rising of the court, taken into account on form 1
14 July 1998 Central Local Court	Contravene apprehended domestic violence order	$100 recognisance s558, 12 months; supervision re psychiatric care
25 March 1997 Central Local Court	Breach apprehended violence order	14 days’ imprisonment
26 February 1997 Central Local Court	Assault beat & ill treat Fail to appear	10 months’ imprisonment Rising of the court
17 November 1995 Redfern Local Court	Assault occasioning actual bodily harm	12 months’ imprisonment
16 May 1994 Central Local Court	Breach apprehend violence order	3 months’ imprisonment
25 November 1993 Redfern Local Court	Breach apprehend violence order	Proved, dismissed under s 556a
23 November 1993 Central Local Court	Breach apprehend violence order	Adj gen
1 November 1993 Downing Centre Local Court	Malicious damage	$300 fine
20 October 1993 Waverly Local Court	Offensive manner	$200 fine
30 March 1992 Sydney District Court	Maliciously inflict grievous bodily harm	12 months’ imprisonment (severity appeal in NSWCCA abandoned)
1 March 1991 Redfern Local Court	Assault s61	$1000 recognisance s558, 12 months’ good behaviour, $500 fine
27 September 1990 Downing Centre Local Court	Assault occasioning actual bodily harm	Adj gen

Applicant’s medical condition and prospects of rehabilitation

1. The means exist within the community to treat the applicant.  In 2020, a plan existed for his support in the community if he were released. Dr. McCluskey, an Occupational Therapist and a volunteer with Balmain for Refugees, has been assisting him, at first while he was at Christmas Island Detention Centre, and since September 2019, she has visited him weekly or called him during the Covid 19 period. She organised a community protection order for him and intended that he would attend Foster House in Surry Hills for treatment.  She arranged for him to consult with Dr Ellis, a Forensic Psychiatrist, who gave evidence before the Tribunal.

2. Dr Ellis was satisfied with the 2020 arrangements, but less satisfied with interim arrangements made when the Foster House arrangements fell through, because of Covid 19 conditions. Those arrangements may be able to be put back in place in the future.

3. Dr Ellis believes that the applicant’s alcoholism and his schizophrenia should be treated together in order to maintain his abstinence from alcohol and eventual recovery.

4. As Mr Cleary of counsel for the Minister submitted, in detention, he receives no treatment for alcoholism, so that if he were now released, he would remain at substantial risk of recidivism. The treatment that he receives for schizophrenia is merely the provision of medication, which appears to be quite insufficient. If as Dr Ellis believes, long term treatment and long-term accommodation are required by the applicant for his hoped-for recovery, that will not occur while he remains in detention.

5. I explained to Dr. McCluskey the nature of these proceedings and that there was apparently no likelihood of his imminent release. Any such prospect is in the future.

6. Since his treatment in detention is not apparently aimed at his rehabilitation, he will not, at the present time, reach a stage where it can be said that there is not a substantial risk involved in his release. The degree of care which will be required before such a judgment can be made is simply lacking while he remains detained.

7. On the other hand, while he is detained, it cannot be said, in my opinion that he is a danger to the community. Those being now and for the immediate future his circumstances, the reviewable decision will be set aside, accordingly.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of AAT

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

Associate

Dated: 19 November 2021

Date(s) of hearing:	30 June 2021, 2 July 2021, 3 September 2021
Date final submissions received:	1 October 2021
Advocate for the Applicant:	Dr A McCluskey
Counsel for the Respondent:	Mr M Cleary