TSXN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3533
•20 October 2023
TSXN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3533 (20 October 2023)
Division:GENERAL DIVISION
File Number: 2023/1654
Re:TSXN
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:20 October 2023
Date of written reasons: 1 November 2023
Place:Sydney
The decision of the delegate of the Respondent dated 8 March 2023 to refuse to grant the Applicant a Protection (Class XA) visa is set aside. The matter is remitted to the Respondent for reconsideration with a direction that the Applicant is not a person whom the Respondent considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
..........[SGD]..............................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – Migration Act 1958 (Cth) – protection visa – whether the applicant is a danger to the Australian community – meaning of “danger” – decision under review set aside and remitted for reconsideration
Legislation
Migration Act 1958 (Cth)
Cases
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84
DOB18 v Minister for Home Affairs [2019] FCAFC 63
MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259
SLGS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 104
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
1 November 2023
INTRODUCTION
TSXN (the Applicant) is a citizen of Myanmar. He was born in 1989 in Hakha, the capital of Chin State, the son of a farmer. His parents separated when he was six years old, and care for him and his two younger sisters fell to their father (CBA), a prominent village leader. In 2001, CBA fled Myanmar as a political dissident and later came to Australia on a humanitarian visa. After their father left, the children lived with their grandmother, who died a couple of years later.[1] TSXN and his sisters were sent to an orphanage run by a family friend. He worked around the orphanage and as a farm labourer. In 2008, he joined the army but after four months went on leave and did not return.[2] He did not receive any significant education and speaks little English.[3] By the time he was 16 years old, he had developed a dependence on alcohol.
[1] See 1830129 (Refugee) [2021] AATA 5066, at [42], [79].
[2] Delegate’s reasons for decision in visa revocation proceedings: T5, 64 at [77].
[3] See 1830129 (Refugee) [2021] AATA 5066, at [21], [50].
In 2009, his father entered an arranged marriage with NGA, a forty-year-old woman living in Myanmar. In May 2010, NGA was granted a humanitarian visa to come to Australia and TSXN and his sisters were included as dependants. They arrived in Australia on 14 July 2010.[4]
[4] He was granted a Refugee (Subclass XB 200) visa (refugee visa): T2, 8.
The relationship between TSXN and his father was strained. The long separation and differences in temperament were exacerbated by alcohol. He and his father had verbal and physical confrontations and even came to blows.[5] In October 2010, CBA applied for an interim intervention order and a full order was granted on 22 October 2010. One of the conditions of the order was that TSXN not attend or remain at the family home when effected by alcohol. On 21 December 2010, TSXN was convicted of contravening the order. He was also convicted of making threats to kill, damage property, assault with a weapon, and recklessly cause injury to his father. He was sentenced to 180 days imprisonment, with 47 days declared as time served, and the remainder suspended for a period of 12 months.[6]
[5] T16, 194.
[6] Sentencing Remarks of Judge Gullaci: T16, 194, at 195.
On 21 March 2011, while heavily inebriated, TSXN raped NGA while she was at home with his younger sister. On 9 September 2011, TSXN pleaded guilty to four offences (including rape) and was sentenced in the County Court of Victoria to six years and two months imprisonment with a non-parole period of four years.[7]
[7] Sentencing Remarks of Judge Gullaci: T16, 194.
Visa cancellation
On 11 March 2015, a delegate of the Respondent cancelled the Applicant’s XB200 (Refugee) visa under subsection 501(3A) of the Migration Act 1958 (Cth) (Migration Act). On 20 April 2015, he completed the non-parole period of his sentence and was transferred to the Maribyrnong Immigration Detention Centre (MIDC) in Victoria.[8] On 28 May 2015, he was moved to the North-West Point Immigration Detention Centre (NWPIDC) on Christmas Island. He was also detained on three separate occasions at the Yongah Hill Immigration Detention Centre (YHIDC) in Northam, Western Australia.[9] Most recently, on 17 February 2023, he was transferred to the Villawood Immigration Detention Centre (VIDC) in Sydney. His detention in immigration detention extends over the past 8 years and 6 months.
[8] T2, 33.
[9] 5 November 2015 to 1 March 2016; 10 May 2018 to 4 September 2018; 1 October 2018 to 14 August 2020.
On 2 April 2015, the Applicant requested revocation of the cancellation of his visa. On 29 August 2016, the Assistant Minister personally decided not to revoke the mandatory cancellation of the visa.[10] On 22 December 2017, the Federal Court (per North J) quashed the non-revocation decision and remitted the matter for reconsideration according to law.[11]
[10] T3, 43.
[11] T4, 51.
On 24 May 2018, the Assistant Minister again personally decided not to revoke the cancellation decision.[12]
[12] T5, 52.
On 10 August 2020, the Federal Court (per O’Callaghan J) quashed the non-revocation decision and remitted the matter for reconsideration according to law.[13]
[13] T6, 73.
On 5 February 2021, a delegate of the Minister decided not to revoke the mandatory cancellation decision, and on 10 February 2021, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision. On 16 March 2021, the Applicant withdrew this application for review.[14]
[14] T2, 9. Under section 499 of the Migration Act the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers. Direction No. 90 came into effect on 8 March 2021. This increased the weighting for family violence as a relevant consideration in visa-cancellation matters.
Application for Protection Visa
On 27 August 2018, the Applicant applied for a protection visa.[15] On 9 October 2018, a delegate of the Minister for Home Affairs refused his application,[16] and on 12 October 2018, he sought merits review of the refusal decision.
[15] Protection (Subclass 866) visa (PV).
[16] T11, 154.
On 4 November 2021, the Migration and Refugee Division of the Tribunal found that the applicant is a “refugee” within the meaning of subsection 5H(1) of the Migration Act and remitted the matter for reconsideration on remaining criteria.[17]
[17] 1830129 (Refugee) [2021] AATA 5066; T11, 152.
On 8 March 2023, a delegate of the Minister refused his application on the basis that he did not satisfy subsection 36(1C) of the Migration Act, which provides:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds… having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.[18]
[18] T23, 508.
Section 5M of the Migration Act provides that paragraph 36(1C)(b) has effect as if a reference to a particularly serious crime included a reference to a crime that consists of the commission of, relevantly, “a serious Australian offence”.
A “serious Australian offence” is, in turn, defined in subsection 5(1) as an offence against a law in force in Australia which “involves violence against a person” and the offence is punishable by imprisonment for a maximum term of not less than three years.
At the time of his offending, rape was punishable under the Crimes Act 1958 (Vic) by a maximum of 25 years imprisonment. I am therefore satisfied that the Applicant has been convicted by final judgment of a particularly serious crime.
The sole issue
I therefore turn to the sole contentious issue, whether the Tribunal is satisfied that the Applicant is not a person whom the Minister considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. I refer to this as the issue of dangerousness.
MATERIALS BEFORE THE TRIBUNAL
Applicant’s materials:
(a)Various certificates, filed on 10 August 2023
(b)Letter from Applicant’s father filed on 10 August 2023
(c)Psychological Assessment from STARTTS filed 10 August 2023
(d)Psychological Assessment Summary STARTTS 10 August 2023
(e)Applicant’s Statement filed on 10 August 2023
(f)Letter from the Applicant’s sister filed on 10 August 2023
Respondent’s materials:
(a)Statement of Facts, Issues and Contentions (RSFIC) filed 20 June 2023
(b)Tender Bundle (RTB) filed 27 July 2023
(c)Supplementary Tender Bundle (STB) filed 28 July 2023
(d)Further Supplementary Tender Bundle filed 12 October 2023
(e)Closing Submissions filed 4 August 2023
(f)Short Note to the Tribunal filed 4 August 2023
(g)Respondent’s Further Submissions filed 11 October 2023
(h)Respondent’s Further Supplementary Tender Bundle filed 11 October 2023
Other:
(a)T-Documents filed 9 May 2023
(b)Supplementary T-Documents filed 13 July 2023
THE HEARING
The Tribunal heard the matter on 17,18, 28 July and 16 October 2023. The Respondent was represented by Mr B. Kaplan of counsel.
The Applicant was self-represented. He has very rudimentary spoken English and reading skills. He said that he was unable to read the communications from the Department or the materials before the Tribunal. The Tribunal arranged for the assistance of a Hakha Chin interpreter at the hearing.
The Applicant has participated in criminal proceedings before the County Count, in judicial review proceedings before the Federal Court and in merits review proceedings before the Tribunal. In each of these proceedings he was legally represented. The Applicant informed the Tribunal that his former lawyer was based in Perth. When in February 2023 he was transferred to Sydney he expected a referral to another lawyer, but this had not happened. He indicated that he wished to give evidence and submit to cross-examination. His lack of legal representation was a significant additional complication in these proceedings. The Tribunal rapidly formed the impression that the Applicant had a strong sense that the proceedings were stacked against him, that a decision against him was inevitable, and that he had a strong sense of injustice that he had been detained for such a long period of time after completing his term of imprisonment.
The Respondent’s Tender Bundle and Supplementary Tender Bundle contain records relating to the Applicant’s conduct in immigration detention. The former contains a detailed list of incidents for the 8-year period from 28 May 2015 to 6 July 2023.[19] Detailed incident notes are contained within the Supplementary Tender Bundle for some of these incidents.[20]
[19] RTB, 8-11.
[20] STB, 2.
Mr Kaplan cross-examined the Applicant on a range of relevant topics, such as various matters arising from the detention centre incident reports, his level of ongoing interest in consuming alcohol, and his level of commitment to rehabilitation programs.
These included whether he was detained in the high security area in immigration detention,[21] whether he had made or consumed home-brew while in detention on three occasions,[22] whether he agreed to receive a parcel containing shoes in which were hidden a small quantity of methylamphetamine,[23] whether he was involved in a fight in immigration detention,[24] a report by psychologist Dr Coffey relating to prospects of rehabilitation,[25] and whether he had engaged in any rehabilitation programs for anger management, or alcohol use,[26] his relationships with his two sisters,[27] and his father.[28]
[21] Transcript, 17 July 2023, 28.
[22] Transcript, 17 July 2023, 29–36.
[23] Transcript, 17 July 2023, 37-41.
[24] Transcript, 17 July 2023, 42.
[25] Transcript, 17 July 2023, 45-46.
[26] Transcript, 17 July 2023, 47-49.
[27] Transcript, 17 July 2023, 49-50.
[28] Transcript, 17 July 2023, 51.
The upshot of this examination was that the Applicant’s detention record was generally satisfactory. He appears for the most part to have been treated as a low-risk detainee, although there were occasions when his status was upgraded.[29] His infractions were confined to three occasions on which he was caught to be engaged in making “moonshine”. He readily admitted his involvement. He was also caught in possession of various contraband items, including a broken USB cable, a tattoo gun and ink. He was identified in a failed attempt to smuggle drugs into the detention centre. This incident took place on 3 January 2019. The attempt was foiled, and he did not receive any money. When asked about this incident, the Applicant stated:
INTERPRETER: Yes. [I] was told that the drug would be in one of the shoes, but [I] didn’t know which shoes, you know, where the drug was in.[30]
[29] For example, after the contraband smuggling allegation in March 2019, see ST2.1, 521.
[30] Transcript, 17 July 2023, 39.
And later, he said:
INTERPRETER: Well, [I] didn’t know anything about – anything about the shoes, anything about the drugs, but [my] friend asked [me] whether, you know, [I] was okay to use [my] name to receive the parcels and if [I] – if [I] was okay, you know, the friend – the friend would give [me] some money, and then [I] said ‘yes’.
MR KAPLAN: Did you receive money from your friend?– He said, ‘If you caught, I no give you nothing,’ he said. ‘If you come through, I give you. They caught me. Didn’t give me anything.[31]
[31] Transcript, 17 July 2023, 41.
The incident was referred by SERCO to the Australian Federal police for investigation,[32] but the AFP declined to investigate “as the AFP has limited capacity to investigate low priority matters”.[33] No further action was taken.
[32] ST2.2, 524.
[33] ST2.3, 526.
On one occasion he was reported for interfering in an altercation between his friend and another detainee. Apart from this incident, there is no evidence of violence or aggression. He had engaged in some rehabilitation programs and his relationship with his sisters was good, and his relationship with his father had improved.
Upon perusal of the delegate’s decision, the Tribunal noticed that the delegate referred to the Applicant and his father being detained for a period in the same immigration detention centre.[34] The Applicant stated that his father was in immigration detention on two separate occasions. On the first occasion, he did not see his father because they were in different facilities. On the second occasion, they were together at YHIDC. They saw each other and stayed together. He said that he was with his father until he was released, and even went with him to the property office to retrieve his personal effects because his father did not speak English.[35] The Applicant confirmed that the person referred to as his “father” in the delegate’s reasons was indeed his father.
[34] Transcript, 17 July 2023, 52.
[35] Transcript, 17 July 2023, 57-58.
This development was, in the Tribunal’s view, highly significant and directly relevant to the assessment of future harm, given the previous breakdown of their relationship, which had contributed to the Applicant’s offending. The Respondent’s counsel questioned whether such evidence would be relevant to the present assessment of risk:
MR KAPLAN: I accept, though, that it may be relevant to the tribunal’s inquiry, albeit any evidence shedding light on that matter would not go to the present the circumstances of their relationship at present.
SENIOR MEMBER: I would have thought it more relevant than whether he was engaging in homebrewing, Mr Kaplan, on some occasions back in 2018 and 2020. I would have thought the fact that he was actually co located with his father in respect of whom, apparently, according to the sentencing Judge … the victim tried to fight back and stopped the applicant by pulling his hair. When she asked why he was doing this to her, he said he was angry with his father and was seeking out revenge against him. So that’s in the evidence.
And if some many years later it turns out that his father and he are actually getting on just fine in Yongah Hill, I would have thought the tribunal should know about that.
MR KAPLAN: I understand, Senior Member.[36]
[36] Transcript, 17 July 2023, 61.
The hearing was adjourned to the following day to enable the Respondent to obtain instructions. On 18 July the hearing was further adjourned to 28 July 2023 to enable the Respondent to file evidence relating to this issue. The Respondent filed a Tender Bundle on 27 July 2023 and a Supplementary Tender Bundle on 28 July 2023, and the hearing resumed on 28 July 2023.
In response to questions from the Tribunal, the Applicant gave evidence that during the period of co-location at YHIDC in 2019, he and his father spent time together. For example, his father would cook meals in his room, and they would eat together. The Applicant also indicated that he did not request to be co-located with his father.[37]
[37] Transcript, 28 July 2023, 79-80.
During cross-examination of the Applicant, counsel for the Respondent asked the Applicant about where he intended to live in the community and his employment prospects if he was released from detention. The Applicant stated that he planned to live at his sister’s house in Melbourne and his brother-in-law would provide him employment in a warehouse making furniture. It was the Applicant’s “big dream” to have a decent job and start a family in Australia.[38]
[38] Transcript, 28 July 2023, 81.
The Applicant was also asked why his father and sisters had not provided any statements in support of his application before the Tribunal. He thought that they had but was unsure whether the statements had been filed.[39] It was clear to the Tribunal that the Applicant was significantly impeded by his lack of legal representation.
[39] Transcript, 28 July 2023, 82-83.
In this context, the Tribunal directed the Respondent to file their closing submissions in writing by 4 August and the Applicant to provide a statement in reply if he so wished. The Tribunal also asked the Respondent’s counsel whether the Respondent was aware of any services which are provided to persons who are released from detention into the community, for example, a halfway house. The Respondent’s counsel said that he was unable to immediately answer this question and that he would need to take instructions. Subsequently, a note was filed together with the Respondent’s submissions on 4 August, which provided:
We are instructed that the Status Resolution Support Services (SRSS) provides targeted, short-term support to eligible individuals while they engage with the Department to resolve their immigration status; either through the grant of a substantive visa or departure from Australia. The SRSS program also provides short term transitional support for persons who are released from immigration detention. The types of services provided will depend on the person’s circumstances.
For persons who are granted a substantive visa, their immigration status is considered resolved, and they are afforded short term support while they transition to mainstream services.
In the case of this applicant, if he is granted a visa, and does not have family support available, or financial means to support himself, the SRSS program would provide short term support to transition him to mainstream services available to all permanent residents. Support would generally be provided for up to 4 weeks.
The support provided would include transitional accommodation - for single males this is generally in a motel.
Other types of support available to persons released from immigration detention who do not have family support available, or financial means to support themselves, would include:
1. SRSS Provider case worker support and development of a case plan that outlines clear strategies for improving his independence and supporting his integration.
2. Assistance to register with essential services including setting up a bank account, registering with Services Australia for income support if required.
3. An initial payment on release from detention equivalent to a fortnight of income support. The funds assist recipients to purchase basic items during their initial transition until they are able to receive regular income support.
4. Transport to their home city (if different from their place of detention).
5. Linking to other community organisations who can provide support.
The applicant would also have access to health care through Medicare.
On 10 August, the Applicant filed a statement, together with the further evidence outlined above at [17]. The Respondent objected to the Tribunal receiving the further evidence filed as it fell outside the purview of the Tribunal’s direction, and the Respondent would require an opportunity to respond. On 31 August, a directions hearing was held, at which the Tribunal indicated that it would receive the Applicant’s evidence and directed that the proceedings be reopened. The Respondent was provided the opportunity to file further submissions and evidence and a further hearing was listed on 16 October 2023.
In the intervening period, the Respondent indicated that it might wish to secure the father’s health records and require him for cross-examination.
The materials tendered by the Respondent revealed that in late 2017 there was an exchange of emails between the status resolution officer (PS) at NWPIDC and CBA’s case manager (PG) at YHIDC about the relationship between the Applicant and his father. On 15 November 2017, PS sent an email to PG drawing attention to a departmental note that the father and son should not be co-located. On 16 November 2017, PG replied, stating that various file notes suggested that the relationship between father and son was strained because the son blames the father for his visa cancellation and that it “Might be worth asking ABF for the DPAT”.[40] PS then sent an email to the processing team at NWPIDC stating:
I met with [TSXN] this morning to review his immigration case progression and during the interview he stated that he is in contact with all members of his family – including his father. [TSXN] stated that he is aware that his father is at YHIDC and had had spoken on the phone several times and they get on ok. He further stated that any conflict they had was a long time ago and he would be happy to be with his father. However I note that [TSXN] did not specifically request to be placed with his father at this time.
Please note:
·This is not a suggestion to review placement options for other detainee
·Nor is it a request to do – but is for your information only.
[40] RTB, 13.
According to the materials tendered by the Respondent in response to the Tribunal’s interest in this issue, the Applicant and his father were co-located at the YHIDC. The records indicate that TSXN and his father were both accommodated in the Falcon compound for approximately 8 months between December 2018 and July 2019.
I note the following description of the YHIDC provided by the Australian Human Rights Commission:
(c) Yongah Hill Immigration Detention Centre
YHIDC is a large, high-security detention facility with a securitised perimeter including high fencing, anti-climb measures and other security features. It is located in the town of Northam in Western Australia, approximately 100 kilometres from Perth. It accommodates adult men. The YHIDC has two main accommodation compounds, Falcon and Hawk, that are used for detainees assessed as low to medium risk by facility staff. In addition, four new high-security accommodation compounds (Cassowary, Eagle, Kingfisher and Swan) have been in operation since December 2018. These new compounds are used for detainees assessed as high risk by facility staff. At the time of the Commission’s previous inspection in 2018, these compounds had been constructed but were not yet in use.
Detainees in these high-security compounds have more restricted access to shared spaces and facilities outside of their compounds, compared to those in the Falcon and Hawk compounds. The Swan compound is the most restrictive and is used for detainees that have the highest risk rating as assessed by facility staff. Kingfisher is used for detainees who, for various reasons, are assessed by facility staff to require protection from others.
YHIDC has an expansive, central outdoor area (called the ‘Green Heart’) that is used for recreation. It contains two full-size soccer fields, a large outdoor gym, two full-size basketball courts and some gardening plots. There is also a large activity complex with various purpose-built facilities, such as a large kitchen for cooking classes, a woodwork studio and an indoor gym.
YHIDC also has several smaller ‘health care’ compounds, located next to the medical facilities. These are used for people who have significant health care needs. YHIDC also has a ‘high-care accommodation’ unit used for single separation.[41] (Emphasis added)
[41] Australian Human Rights Commission, Inspections of Australia’s immigration detention facilities 2019 Report, December 2020, 21-22.
It appears that the Falcon compound is for detainees assessed as low to medium risk.
RELEVANT CASE LAW
The Respondent referred the Tribunal to various decisions.
In WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (WKCG), the applicant was convicted of manslaughter in 1991, having arrived in Australia from Lebanon in 1987. He was ultimately sentenced to three years imprisonment with an additional term of three years and eight months. He was released on parole in 1994. In 2001, he was convicted of drug offences and sentenced to six years imprisonment. He was released on parole in 2006. In 2008, following the cancellation of his visa, the Refugee Review Tribunal found that he was a “refugee” within the meaning of the Refugee Convention, and he therefore satisfied the protection visa criterion in s 36(2)(a) of the Act. This decision was made prior to the incorporation of subsections 36(1C) and (2C) into the Act. In considering the danger issue, Deputy President Tamberlin QC stated:
25. Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
26. The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism.
30. Counsel for the applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a “real probability” of harm being caused to the community.
31. The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.” (Emphasis added)
In DOB18 v Minister for Home Affairs [2019] FCAFC 63, the appellant sought judicial review of the Minister’s decision to cancel his visa under s 501BA of the Migration Act. The matter came before the Full Federal Court (Rares, Logan and Robertson JJ) on appeal from a single judge upholding the Minister’s decision. In a separate judgment, Logan J had cause to consider DP Tamberlin QC’s comments in WKCG. Logan J stated, at [83]:
83. In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.
Logan J continued, at [87]:
87. Other difficulties about an uncritical acceptance of all that is stated in WKCG arise from that part of the passage quoted to which I have given emphasis. That there is a “danger” is, necessarily in my view, a conclusion based on an assessment of the present “level of risk”. But that does not mean that the word, “danger” carries a meaning that differs from case to case. Its meaning is fixed, but whether it is present in respect of, materially, a person applying for a protection visa will depend on the circumstances of the given case. Further, the reference to “a lesser degree of satisfaction than that required by the expression “probable” antedate and are inconsistent with the observations made by Flick and Perry JJ about administrative fact finding in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555. The state of satisfaction in respect of the subject to which s 36(1C)(b) of the Act is directed must be one reasonably open on the evidence before the Minister, not one which “no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [130] per Crennan and Bell JJ. With respect, to use the word “probable” in relation to administrative fact finding is to borrow “from the universe of discourse which has civil litigation as its subject”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 282.
In MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259, the Tribunal followed Logan J’s decision and stated:
34. We are not comfortable with the notion that a person may be treated as a present danger to the community merely because one cannot discount the bare possibility that some harm may occur in the future.
35. In our view, a level of risk is unacceptable if the evidence before the Tribunal points to a present and serious risk, neither remote nor fanciful, of physical harm, or extreme emotional harm to some member or members of the Australian community. The expression “neither remote nor fanciful” is intended to exclude the ordinary hazards of life; the reference to extreme emotional harm is intended to exclude matters of upset, distress or embarrassment, which do not properly fall within the area of relevant harm.[42]
[42] Per DP Rayment QC, Fairall SM.
In DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 (DMQ20), the appellant had arrived in Australia at age 18 in 2009 from Sudan. In 2016, he was sentenced to 15 months imprisonment for a variety of domestic violence offences, including an assault. His visa was cancelled under s 501(3A) of the Act. Following the non-revocation of that cancellation, he applied for a protection visa. He was found to be owed protection obligations but was assessed to be a “danger” under subsection 36(1C) of the Migration Act. The Tribunal affirmed the delegate’s decision, making the following findings:
·The domestic violence offending was serious and not limited to just one victim.
·If the appellant were to engage in similar conduct to the offending, it would likely result in physical and psychological harm.
·There exists a “present risk which is real, significant and serious, [and] which is neither remote nor fanciful…that the [appellant] will cause physical harm and perhaps severe physical harm, or extreme emotional harm in the present or the future if he were allowed to remain in Australia”: at [95].
Before the Full Court, the appellant submitted that the term “danger” places the threshold higher than “real, significant and serious, which is neither remote nor fanciful”. The appellant also submitted that the phrase “Australian community” in subsection 36(1C) should be understood as a reference to all members of the community, not simply an identifiable member or group of the population.
The Full Court (Rares, Thomas and Snaden JJ) dismissed the appeal. In their Honours’ joint judgment, Thomas and Snaden JJ identified the issue in respect of the term “danger” as follows, at [107]:
107. Conceptually (at least for present purposes), “danger” is a function of probability and consequence. A person will pose a “danger” insofar as there is a sufficient likelihood that he or she will engage in conduct that visits upon others a sufficient degree of harm. Both of those constituent concepts may be measured along spectra. Future conduct might be inconceivable, highly improbable, likely or certain (or any degree in between). The harm that it might visit might range from minor to severe. At issue presently is what combinations of probability and consequence should suffice to qualify as “danger” in the sense contemplated by s 36(1C)(b) of the Act (and its analogue in Art 33(2) of the Refugees Convention).
Their Honours held that it was misconceived to descriptively differentiate degrees of danger with words such as “risk”, “possible” and “probable”, for in the present context, such words serve as a means by which to measure the quantitative dimension inherent in the concept of “danger”. The assessment of danger is speculative and immune to precise quantification.
109. With respect, there was an air of unreality to what was advanced. At least for present purposes, “risk”, “possibility” and “probability” are synonyms. They serve as means by which to measure the quantitative dimension inherent in the concept of “danger”. In other words, there exists a “danger” if there exists a sufficient risk, possibility or probability of sufficient harm. Attempts to distinguish those synonymous concepts—“risk”, “possibility” and “probability” (real, significant, substantial or otherwise)—are, at least for present purposes, misconceived.
110. Similarly, it is artificial—or, at the very least, difficult—to distinguish the existence of danger from the possibility that danger exists. Necessarily, to perceive “danger” is to embark upon a process of speculation. Such processes may be informed by historical and other assessments (for example, as to a visa applicant’s criminal history and the measures that he or she has taken to rehabilitate); but they remain speculative and are inherently immune to precise quantification. “Danger”, then, is a binary proposition: a person, circumstance or thing that presents a sufficient likelihood of sufficient harm will bespeak the presence of danger, even though there remains a prospect—and perhaps, in some cases, a likelihood—that that harm might never be realised. There may well be no relevant distinction to be drawn between a person who is a danger to others and a person who might be such a danger.
Their Honours also referred to the “qualitative” element of the assessment of whether the appellant is a “danger”, holding that it most likely requires physical or psychological injury, at [111], [114]-[116]:
111. Qualitatively, it is clear enough that the reference in s 36(1C)(b) of the Act to “danger” was intended to denote a prospect of harm. Given the statutory context—involving, as it does, an exception to the expectation that Australia will afford protection to refugees and others in need of it—it is likely that the Parliament intended that it should involve harm of non-trivial kinds. The likelihood—even a very high likelihood or certainty—that a person might cause others to feel anxious, offended, embarrassed, miserable or despondent, for example, is unlikely to suffice. “Danger” implies a prospect (howsoever measured) of injury (at the least), most likely of physical or psychological kinds.
…
114. To speak of the presence of “danger”, then, is to speak of a risk of harm that extends beyond what ordinarily attends routine human activity. Driving in a car, flying in a commercial aeroplane and swimming in the ocean are all activities that carry some inherent risk of harm; and yet they could not properly be regarded as dangerous (at least not when undertaken in the usual ways). Perhaps in recognition of that, it has been said that a risk of harm that is not “serious” falls short of the statutory conception of “danger” in s 36(1C)(b) of the Act: DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 657 [83] (Logan J).
115. Insofar as danger might present in the form of a person (as s 36(1C) of the Act contemplates), the likelihood that he or she might visit harm upon others must at least rise beyond what is contemplated by ordinary personal interactions. A person likely would not, for example, be thought of as a danger to others merely because he or she might, through routine contact with them, unwittingly spread a virus or communicable disease. A person who is a known carrier of something particularly harmful and who has a tendency to interact with others intending that they should (and knowing that they might) contract it, on the other hand, may well be.
116. In its human form, then, “danger” presupposes that there should be something about a person’s character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of routine interaction. Ordinarily, that would fall to be assessed by reference to the person’s prior conduct and the likelihood that it might be repeated. A person with no history of violent offending would ordinarily be thought not to pose any danger to others, no matter that he or she might possess some real capability to inflict harm. A person with an appetite for and history of violence, on the other hand, might well be thought otherwise.
WKCG was approved for the proposition that the term “danger” in subsection 36(1C) does not have a technical meaning, rather, it “falls for consideration under the light of the whole of the relevant facts and circumstances that present”: at [118] citing WKCG at [25]. Based on this construction, their Honours concluded that the Tribunal’s conclusion of “present risk which is real, significant and serious, which is neither remote nor fanciful…” fell within the meaning of “danger”.
Their Honours also rejected the submission that “Australian community” refers to the community as a whole. The appellant’s submission would stretch the requirement to be enlivened only where the person poses some “broader, national danger. Such a construction stretches the words of the statute beyond what is credible”: at [129]. The appeal was therefore dismissed.
In SLGS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 104, the appellant arrived in Australia in 2006 at age 10 on a Global Special Humanitarian visa. Between his date of arrival and 2018, he accrued 39 criminal and traffic convictions. These offences included driving while disqualified, unlicensed driving and driving while suspended, criminal damage, receiving stolen goods, affray, theft, resisting a police officer, possession of cannabis, possession of prohibited weapon without exemption, committing an indictable offence whilst on bail, recklessly causing injury, and intentionally damaging property. He was sentenced to a 15-month term of imprisonment for 31 offences in August 2018. His visa was mandatorily cancelled under subsection 501(3A) of the Migration Act. He applied for a protection visa in 2020 but was refused on the basis that he was a danger to the Australian community. The Tribunal affirmed this decision in May 2021. The appeal to the Federal Court was dismissed on 8 September 2022.
On appeal to the Full Court, the appellant argued that the primary judge erred by misconstruing the phrase “danger to the Australian community”. He argued that paragraph 36(1C)(b) required a “present and serious risk amount to danger, and not just a possibility of risk nor a real risk”. The appellant further argued that the “present and serious risk” must be to the Australian community as a whole, not to a specific segment or member of the community.
The Full Court (per Jackson J, Rares and Snaden JJ agreeing), held that the Tribunal did not fall into jurisdictional error and dismissed the appeal. Jackson J summarised the Tribunal’s reasoning for finding the appellant to be a “danger” on the following factors:
·The 15-month sentence illustrated the overall seriousness of the offending.
·The number of offences (39) constituted an extensive criminal record.
·The appellant’s traumatic childhood was not a mitigating factor, and untreated trauma may increase the likelihood of future reoffending.
·The appellant’s problem with alcohol (which was linked to much of his offending) was not adequately addressed – the appellant’s stated intention to not consume alcohol was not tested in the community.
·Two reported violent incidents in immigration detention: the appellant allegedly pushed another detainee in the chest on one occasion and on another he smashed a computer and punched another detainee.
Jackson J summarised the correct approach as follows at [82]:
82. It would be consistent with their Honours' approach [in DMQ20] for the decision maker to consider whether the harm that will eventuate if the danger becomes a reality is non-trivial and whether it would be harm of a physical or psychological kind. It would also be consistent with that approach to consider whether the risk that the harm will eventuate goes beyond that which is contemplated in ordinary personal interactions. Both the plurality and Rares J endorsed a concept of danger that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates.
Jackson J therefore held that the approach formulated in DMQ20 is not inconsistent with DP Tamberlin QC’s approach in WKCG. His Honour stated there that “[t]he list of factors which the Deputy President set out in that decision remains useful, provided it is approached, not as a 'test' or a mechanical checklist, but as a guide to assessing the fundamental question of fact.”: at [85]. His Honour held that the Tribunal correctly applied the indicia in WKCG in finding that the appellant was a “danger”. The appeal was therefore dismissed.
RESPONDENT’S SUBMISSIONS
The Respondent pointed to several factors to support the contention that the Applicant was a danger to the community: his behaviour in immigration detention, a lack of rehabilitation, the risk he posed to his family and especially his father, and the implicit risk based on the commission of a serious sexual offence in 2011.
I note that there are some allegations made against the Applicant that the Respondent does not rely upon. For example, there is a reference to sexual assault recorded at the NWPIDC and referred to in the materials.[43] This incident was not particularised.
[43] Incident 06 August 2021, IR2900940; T, 309; 71; Note 1-I6H76XM: RTB, 9.
I also note that there is a reference to an escape attempt in the delegate’s Protection Visa Decision Record.[44] The delegate stated:
It is noted that the applicant was invited to comment on information suggesting that whilst in prison he attempted to escape and used detainees’ ID cards for personal gain. The applicant’s representative responded indicating that this allegation is completely false, and submitted that it would not be the case that he was not involved in any incidents that resulted in a governors hearing while in prison, if he had tried to escape. I have no further information to verify the allegations about the applicant’s behaviour in prison, and considering the comments from the parole officer in 2018, and the absence of further information, I have concluded that the applicant’s behaviour during his years spent in criminal detention has generally been satisfactory.[45]
[44] T2, 7.
[45] T2, 36.
The Respondent did not rely upon this incident, which was not mentioned at the hearing.
CONSIDERATION
These proceedings are not concerned with punishment or retribution but with community protection, mediated by the concept of being a danger to the community. The Tribunal is required to determine the risk of future harm, based upon the evidence before it.
The information provided to the Tribunal indicates that the sentence given to the Applicant for the rape fell within the median range. It was not towards the higher end of the spectrum and the sentence fell well below the maximum penalty of 25 years. Moreover, the offending occurred more than 12 years ago. As WKCG itself shows, a decision-maker may find that a person is not a danger to the community even after they have committed very serious offences, in that case, homicide and subsequent drug importation.
In WKCG the Tribunal held that, on the evidence, the applicant was not a danger to the community, noting the following factors:
·The applicant had not been convicted of any violent incidents in prison (there was an incident in 2004 but “the circumstances of this are not clear and this does not evidence any danger in the sense of attacking others or being a risk to others’ physical, as a consequence of violence, safety.”): at [33].
·His two lengthy prison terms “strongly motivated” him to avoid any risk of further imprisonment: at [36].
·He had shown sufficient contrition and shame for his conduct: at [38].
·He has extremely strong family support available to him upon release: at [40].
·He had prospects of employment: at [42].
·The expert evidence showed a low risk of recidivism, provided he had continued family support and counselling: at [43].
Most of these factors are present in this case. Apart from one minor scuffle on 14 November 2020 resulting in the loss of 10 IAP points (no disciplinary charges were laid), there is nothing in the Applicant’s detention record that shows any propensity for violence.[46] The Applicant gave credible evidence that he was attempting to break up a fight between his friend and another detainee.
[46] STB, 527-528.
The Respondent contends that the record shows continuing interest in alcohol, based on the incident reports relating to home brew and his admission that he was involved in making it.[47] Regarding his previous alcohol dependency, the Respondent notes that:
While the applicant’s consumption of alcohol has not led to the commission of assaults in immigration detention, that is not significant, for, being a controlled environment, the scope for commission of criminal offences is more limited than in the community.[48]
[47] See above STB,512, ST, 530, ST, 536.
[48] RSFIC [39].
The Applicant admitted that he made moonshine and that he consumed it while at the detention centre.[49] Given the role played by alcohol in his offending, it is of course understandable that any ongoing interest in alcohol is of significance. In my view, it is too long a bow to draw to suggest that he is likely to drink to excess and relapse into chronic alcoholism if released into the community.
[49] Transcript, 17 July 2023, 29.
There is also the worrying drug smuggling incident referred to the AFP, which declined to investigate. Although the Applicant’s responses to questions put to him by the Respondent suggest that he was not entirely innocent and was at least wilfully blind, the Tribunal cannot ignore the fact that the matter was treated as a low priority by the AFP and no charges were laid.
In terms of deterrence, the Applicant has spent a considerable period in prison and immigration detention. In assessing future dangerousness, it would be unrealistic to overlook the role of deterrence. He has suffered a very considerable loss of liberty because of his offending. Such a long period in prison and detention must serve as a powerful deterrent.
In terms of contrition and remorse, I am satisfied that the Applicant displayed such emotions.
In terms of family support, I note that his father and sisters have provided strong letters of support. They did not give evidence in these proceedings. The letters suggest that the Applicant would live with his father and provide care for him if granted a visa. The Tribunal did not have before it any evidence of CBA’s health or the capacity for the Applicant to care for him. Nor were these statements put to the Applicant in cross examination. In any event, the Tribunal is satisfied that the Applicant is not a danger to his immediate family.
In terms of expert assessments of risk, apart from the report by Dr Coffey, which was tendered at his criminal hearing in 2011, there is but one psychological report before the Tribunal. In 2023, a psychological assessment was carried out by Ms Y. Aiello, a Clinical Psychologist employed by the NSW Service for Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). The Report was based on a semi structured interview with the Applicant and held via telephone on 8 June 2023. Ms Aiello notes that the interview lasted approximately one and a half hours and was conducted in English as, in her view, he was able to communicate adequately in the English language. The Report is useful in providing information about his present psychological state but does not provide any assessment of risk. I note the comment that “[TSXN] does not present with suicidal ideations but is very frustrated, disillusioned and is experiencing feelings of desperation due to his situation.”
The Respondent relied heavily upon the Applicant’s relatively recent participation in external mental health services. I do not find this evidence especially persuasive. It had a “damned if you do, and damned if you don’t” quality about it. The Applicant was repeatedly asked whether he was motivated to seek external health services to improve his chances in these proceedings. His answer was that he was only recently aware of the existence of such services. This led to lengthy and fruitless cross-examination as to when he became aware of such services. It was, with respect to the Respondent’s counsel, not entirely helpful to the Tribunal, given his cultural, social, linguistic, and legal isolation during his long detention.
In terms of employment, I note that the Applicant undertook various training programs in prison and immigration detention.[50] These include various certificates issued by the Kangan Institute in 2011 and 2012 while in prison (warehouse operations, cleaning operations, etc) and a few certificates from Australian Border Force (grammar, behaviour, appreciation). His potential for employment has not been enhanced by the long period of time he has spent in immigration detention. Prison inmates are provided with greater opportunities than those detained in immigration detention. However, given the long period he has spent in detention, there is no doubt that his employment prospects are not presently high, and that he will require considerable support from family and where possible, government agencies.
[50] See Certificates: A1.
It is well understood that the enforced idleness of long immigration detention, where detainees from different backgrounds and cultures are forced to live together, often for indeterminate periods, is for many the epitome of a high stress environment. The Applicant has experienced this environment for eight years. The fact that his record shows an absence of aggression is a positive sign, to which the Tribunal attaches considerable significance. The delegate’s perception that the Applicant’s behaviour in detention “has been mostly acceptable” is important.[51] His record is not perfect, but considering the length of his detention, the Tribunal concurs with the delegate’s assessment.
[51] T2, 37.
The Respondent contends that the Applicant presents an ongoing risk to his father, given the strained relationship between them. In this context, the fact that the sentencing judge referred to the sexual assault as a “revenge” rape assumes particular significance. However, given the evidence of co-location at the YHIDC for much of 2019, I am satisfied that the Applicant is not a danger to his father.
The case law confirms that the word “danger” does not have a technical meaning but “falls for consideration under the light of the whole of the relevant facts and circumstances that present”.[52]
[52] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84, per Thomas and Snaden JJ at [118], citing WKCG at [25].
I am satisfied that the risk presented by the Applicant’s presence in the community does not rise beyond what might be contemplated in ordinary personal interactions. While he stands convicted in 2011 of a serious sexual offence, and breaching an AVO, 12 years have elapsed since these convictions. There is a conspicuous lack of evidence of any violent or aggressive tendency, despite being imprisoned for four years and subsequently detained for more than eight years. There is compelling evidence that his relationship with his father has improved and is no longer toxic. He has received support from immediate family members, including his sisters and his father. He has commenced the process of engagement with mental health services. I am satisfied on the evidence presented that the Applicant is not a danger to the Australian community.
DECISION
The decision of the delegate of the Respondent dated 8 March 2023 to refuse to grant the Applicant a Protection (Class XA) visa is set aside. The matter is remitted to the Respondent for reconsideration with a direction that the Applicant is not a person whom the Respondent considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
I certify that the preceding 81 (eighty -one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
.........[SGD]...............................................................
Associate
Dated: 1 November 2023
Dates of hearing: 17, 18, 28 July and 16 October 2023 Applicant: In person Counsel for the Respondent: Mr B. Kaplan Solicitors for the Respondent: Australian Government Solicitor
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