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

TYXB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 9 (7 January 2020)
Division:GENERAL DIVISION
File Number: 2019/2322
Re:TYXB
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:7 January 2020
Place:Perth

The Reviewable Decision of the delegate of the Respondent dated 3 April 2019 to refuse the Applicant a subclass XA-866 Permanent Protection Visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.
...........................[sgd].........................................
Senior Member Dr M Evans
Catchwords
MIGRATION – refusal to grant a protection visa – Applicant has been convicted by a final judgment of a particularly serious crime – whether Applicant is a danger to the Australian community – seriousness and nature of the crimes committed – length of sentences imposed – whether any mitigating or aggravating circumstances – extent of the criminal history – nature of the prior crimes – risk of reoffending and recidivism and the likelihood of relapsing into crime – the criminal record as a whole – prospects of rehabilitation – decision under review affirmed
Legislation
Migration Act 1958 (Cth) – ss 5, 36(1C), 36(1C)(b), 36(2)(a), 36(2)(aa), 47, 65, 65(1)(b), 499, 500(1)(c), 500(1)(c)(i), 501, 501(2), 501E(2)(a)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) – Sch 5, Pt 2, item 9
Cases
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
DOB18 v Minister for Home Affairs [2019] FCAFC 63
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
RWDX and Minister for Immigration and Border Protection [2019] AATA 123
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148
WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434
Secondary Materials
1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol – Art 33(2)
Minister for Immigration and Border Protection, Direction No. 75 – Migration Act: Direction under section 499: Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (Department of Immigration and Border Protection, 6 September 2017) – Part 2 – paras 1, 2
Refugee Law Guidelines (Department of Home Affairs, 1 July 2017) – Ch 14
REASONS FOR DECISION
Senior Member Dr M Evans
7 January 2020
OVERVIEW

The Applicant is a 25-year-old citizen of Sudan. He is seeking review of a decision of a delegate of the Respondent dated 3 April 2019 (T2, pages 3-27). This will be referred to as the Reviewable Decision.
The Reviewable Decision was a decision not to grant the Applicant a subclass XA-866 Permanent Protection Visa. The delegate decided that the Applicant did not meet the criterion in s 36(1C)(b) of the Migration Act 1958 (Cth) (the Act) because he had been convicted of a particularly serious crime and was considered by the delegate to be a danger to the Australian community.
The delegate was, however, satisfied that the Applicant met the criteria in s ss 36(2)(a) and 36(2)(aa) of the Act. These were that the Applicant is a refugee and that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being returned to South Sudan that there was a real risk that the Applicant would suffer significant harm.
On 9 April 2019, the Applicant filed an application in the Administrative Appeals Tribunal (the Tribunal) seeking a review of the Reviewable Decision (T1).
BACKGROUND
The Applicant arrived in Australia on 12 April 2006 on a Class XB Subclass 200 Refugee and Humanitarian (Permanent) Visa (Visa) (T3, page 82) when he was approximately 12 years old after spending time in a refugee camp in Kenya.
The Applicant committed his first offence in Australia as a juvenile on 9 March 2008, less than two years after arriving in Australia when he was 14 years of age. He has been convicted of 26 offences as a juvenile and a further 22 offences as an adult.
The Applicant’s juvenile offending is set out in the following table (Exhibit R2, Annexure A):

Offence Offence Date Conviction Date Sentence

Assault Public Officer 9 Mar 2008 19 Sep 2008 YCBO: 3 MTHS (SUPVSN)

Breach of Bail Undertaking 14 Aug 2008 19 Sep 2008 YCBO: 3 MTHS (SUPVSN)

Give False Personal Details to Police 9 Mar 2008 19 Sep 2008 YCBO: 3 MTHS (SUPVSN)

Give False Personal Details to Police 5 Sep 2008 19 Sep 2008 YCBO: 3 MTHS (SUPVSN)

Obstructing pubic officers 9 Mar 2008 19 Sep 2008 YCBO: 3 MTHS (SUPVSN)

Possessing stolen or unlawfully obtained property 5 Sep 2008 19 Sep 2008 YCBO: 3 MTHS (SUPVSN)

Common Assault 12 Sep 2009 14 Jan 2010 JUV.JUST.TEAM Adjourned. Return to court

Threats to injure, endanger or harm any person 12 Sep 2009 14 Jan 2010 JUV.JUST.TEAM Adjourned. Return to court

Aggravated Burglary and Commit Offence in Dwelling 13 Apr 2010 4 May 2010 DETENTION: 6 Months CONCURRENT FROM 10 Apr 2010

Common Assault 13 Apr 2010 4 May 2010 DETENTION: 3 Months CONCURRENT FROM 10 Apr 2010

Demanding Property by Oral Threats 9 Dec 2009 4 May 2010 DETENTION: 8 Months CONCURRENT FROM 10 Apr 2010

Deprivation of Liberty 9 Dec 2009 4 May 2010 DETENTION: 8 Months CONCURRENT FROM 10 Apr 2010

Stealing 9 Dec 2009 4 May 2010 NO PUNISH – S 67: Time spent on remand in custody

Wilfully & unlawfully destroy or damage property 21 Dec 2009 4 May 2010 NO PUNISH – S 67: Time spent on remand in custody

Final hearing following JJT, from appearance on 14 Jan 2010 12 Sep 2009 3 Aug 2010 NO PUNISH – S 67

Final hearing following JJT, from appearance on 14 Jan 2010 16 Dec 2009 3 Aug 2010 NO PUNISH – S 67

(Att) Stealing from Person of another 10 Dec 2010 26 Jul 2011 DETENTION: 2 Months CONCURRENT FROM 13 Apr 2011

Aggravated Robbery 11 Dec 2010 26 Jul 2011 DETENTION: 15 months CONCURRENT FROM 13 Apr 2011

Aggravated Robbery 12 Feb 2011 26 Jul 2011 DETENTION: 4 Months CONCURRENT FROM 13 Apr 2011

Breach of Bail Undertaking 12 Feb 2011 26 Jul 2011 NO PUNISH – S 67; Time spent on remand in custody

Disorderly behaviour in public 3 Feb 2011 26 Jul 2011 NO PUNISH – S 67; Time spent on remand in custody

Stealing 3 Feb 2011 26 Jul 2011 NO PUNISH – S 67; Time spent on remand in custody

Wilfully & unlawfully destroy or damage property 9 Feb 2011 26 Jul 2011 NO PUNISH – S 67; Time spent on remand in custody

Possess a Prohibited Plant 25 Aug 2010 10 Aug 2011 NO PUNISH – S 67

Possess a Smoking Utensil used for smoking prohibited drug 27 Dec 2011 10 Feb 2012
FINE: $100

Without lawful excuse trespassed on a place 27 Dec 2011 10 Feb 2012 FINE: $100

The Applicant’s adult offending is set out in the following table (T3, pages 51-54):

Offence Offence Date Conviction Date Sentence

Carried an article with intent to injure Unknown 21 Feb 2012 Fine $700

Assault occasioning bodily harm 1 May 2012 19 Oct 2012 Imprisonment for 8 months concurrent

Wilfully and unlawfully destroy or damage property 8 May – 9 May 2012 19 Oct 2012 Imprisonment for 3 months concurrent

Without lawful excuse trespassed on a place 8 May – 9 May 2012 19 Oct 2012 Imprisonment for 2 months concurrent

Disorderly behaviour in public Unknown 19 Oct 2012 Fine $800

Wilfully and unlawfully destroy or damage property Unknown 19 Oct 2012 Fine $500

Possessing stolen or unlawfully obtained property Unknown 15 Jul 2013 Fine $250

Stealing Unknown 15 Jul 2013 Fine $200

Disorderly behaviour in public Unknown 5 Aug 2013 Fine $400

Possess a prohibited drug (cannabis) Unknown 23 Aug 2013 Fine $200

Stealing Unknown 10 Oct 2013 Fine $300

Stealing Unknown 13 June 2014 Fine $600

Stealing Unknown 13 June 2014 Fine $500

Aggravated burglary and commit offence in dwelling 18 Jul 2013 23 Oct 2014 Imprisonment for 16 months

Attempt to pervert justice 8 Apr 2014 23 Oct 2014
Imprisonment for 6 months cumulative

(total imprisonment for 22 months commencing 22 Dec 2013)

Assault occasioning bodily harm Unknown 27 Oct 2014 Imprisonment for 12 months concurrent

Aggravated burglary and commit offence in place Unknown 27 Oct 2014 Imprisonment for 10 months concurrent

Steal motor vehicle Unknown 27 Oct 2014 Imprisonment for 3 months concurrent

Steal motor vehicle Unknown 27 Oct 2014 Imprisonment for 3 months concurrent

Breach of bail undertaking Unknown 27 Oct 2014 Fine $500

Breach of bail undertaking Unknown 27 Oct 2014 Fine $500

Stealing Unknown 27 Oct 2014 Proved. No penalty imposed.

As shown in the above Table of the Applicant’s adult offending, on 19 October 2012, the Applicant was sentenced to eight months imprisonment for “assault occasioning bodily harm”, three months imprisonment for “wilfully and unlawfully destroy or damage property”, two months imprisonment for “without lawful excuse trespassed on a place”. These terms were to be served concurrently.
These terms of imprisonment resulted in the Department of Immigration and Citizenship considering whether to cancel the Applicant’s Visa on character grounds under s 501 of the Act. The Department decided not to cancel the Applicant’s Visa, and instead gave the Applicant the following formal warning which the Applicant signed to acknowledge (T3, pages 75-77):
[The Applicant’s] repeated violent offending has been regarded very seriously. While [the Applicant’s] background as a refugee gives some understanding into the challenges he has faced since arriving in Australia, he needs to be clear that this kind of behaviour is completely unjustified and unacceptable to the Australian community. [The Applicant] should also remain aware that his future stay in Australia, not a right, and any further criminal convictions could lead to cancellation of his Visa in the future.
However subsequent to receiving this warning, as shown in the above Table of the Applicant’s adult offending, on 23 October 2014 the Applicant was sentenced to 16 months imprisonment for “aggravated burglary and commit offence in dwelling” and six months imprisonment for “attempt to pervert justice”, to be served concurrently. Approximately four days later, on 27 October 2014, the Applicant was sentenced to 12 months imprisonment for “assault occasioning bodily harm”, 10 months imprisonment for “aggravated burglary and commit offence in place”, and to two terms of three months imprisonment for two counts of “steal motor vehicle”.
Consequently, the Applicant was advised in a letter dated 9 September 2015 that his Visa had been mandatorily cancelled by a delegate of the Respondent under s 501(3A) of the Act (T3, pages 47-50).
The Applicant made representations seeking revocation of the mandatory visa cancellation (T3, pages 78-81). However on 5 April 2016, a delegate of the Respondent decided not to revoke the decision to cancel the Applicant’s Visa. The delegate was not satisfied that the Applicant passed the character test, and was not satisfied that there was another reason why the cancellation decision should be revoked (T3, page 36).
The Applicant applied to the Tribunal for a review of the delegate’s decision on 5 April 2016 (T4, page 232). In a decision dated 7 October 2016, the Tribunal affirmed the delegate’s decision (T4, pages 228-257). The Applicant sought judicial review of the Tribunal’s decision, but was unsuccessful (T5, pages 258-270).
The Applicant lodged an application for a protection visa on 2 August 2017 (T6, page 271-299). On 3 April 2019, a delegate of the Respondent made the Reviewable Decision which, as described in paragraphs [1] and [2] above, was to refuse the Applicant’s application for a protection visa.
ISSUES
The issues that require determination by the Tribunal are whether the Tribunal considers, on reasonable grounds, that:
(a)the Applicant has been convicted by a final judgment of a particularly serious crime; and
(b)whether the Applicant is a danger to the Australian community.
MATERIAL BEFORE THE TRIBUNAL
The application was heard on 26 September 2019. The Applicant was represented by
Mr Udall and the Respondent was represented by Mr Gerrard.
At the hearing oral evidence was given by the Applicant. The Applicant’s sister gave evidence by telephone.
The following documents were admitted into evidence at the hearing:
(a)Applicant's Statement of Facts, Issues and Contentions (the Applicant’s SFIC) dated 7 August 2019 (Exhibit A1);
(b)statutory declaration of Applicant dated 6 August 2019 and copies of “Certificate of Attendance” for various courses (Exhibit A2);
(c)statutory declaration of the Applicant’s sister dated 6 September 2019 (Exhibit A3);
(d)
character reference letter from a community association Chairperson dated

17 September 2019 (Exhibit A4);
(e)
further certificates of participation in various courses filed with the Tribunal on

25 September 2019 (Exhibit A5);
(f)section 37 documents (the T-documents) numbered T1 to T12 comprising 405 pages (Exhibit R1); and
(g)Respondent's Statements of Facts, Issues and Contentions (the Respondent’s SFIC) dated 5 September 2019 including Annexure A - Chronology of Juvenile Offending (Exhibit R2).
LEGISLATIVE FRAMEWORK
The legislative framework was summarised by Deputy President Boyle in RWDX and Minister for Immigration and Border Protection [2019] AATA 123 (RWDX).
The relevant provisions of the Act include: ss 65; 36(1C) which was inserted into the Act to codify Article 33(2) of the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol; and 5M and 5 of the Act which define “particularly serious crime” and “serious Australian offence”.
Deputy President Boyle stated, at [18]-[24]:
18. The General Division of the Tribunal has jurisdiction to review a decision to refuse to grant a protection visa pursuant to s 65 of the Act, relying on

s 36(1C) of the Act, under s 500(1)(c)(i) of the Act.
19. Section 65 of the Act provides:
(1)     Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a)   if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b)   if not so satisfied, is to refuse to grant the visa.
20. Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Amending Act) and was intended to codify Art 33(2) of the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol (the Refugees Convention) (see Sch 5, Pt 2, Item 9 of the Amending Act and the relevant explanatory memorandum).
21. Article 33(2) of the Refugees Convention is as follows:
Prohibition of expulsion or return (“refoulement”)
1.      No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2.      The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
22. Section 36(1C) of the Act provides:
(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.
23. Section 5M of the Act provides:
5M    Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a)serious Australian offence; or
(b)a serious foreign offence.
24. Section 5 of the Act defines “serious Australian offence” as follows:
Serious Australian offence means an offence against a law in force in Australia, where:
(a)    the offence:
(i)involves violence against a person; or
(ii)is a serious drug offence; or
(iii)involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)    the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
The Deputy President, at [25]-[26], continued on to outline relevant parts of Minister for Immigration and Border Protection, Direction No. 75 – Migration Act: Direction under section 499: Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (Department of Immigration and Border Protection, 6 September 2017) (Direction no. 75), as well as the relevant policy guidelines, being the Refugee Law Guidelines (Department of Home Affairs, 1 July 2017):
25. On 6 September 2017 the Minister for Immigration and Border Protection issued a direction under s 499 of the Act to delegates who consider valid applications for Protection visas under s 47 of the Act and perform functions or exercise powers under s 65 of the Act to grant or refuse to grant Protection visas (Direction no. 75). Direction no. 75 sets out the following Principles:
1)      Australia has a right to determine whether non-citizens who present serious character or security concerns should be granted a visa, including a Protection visa.
2)      The Australian community expects that the Australian Government can and should refuse to grant a non-citizen a visa, if they pose a danger to the Australian community having have been convicted of a particularly serious crime in Australia or elsewhere, or present a danger to Australia's security.
3)      It is unacceptable to grant a Protection visa to a non-citizen who is considered to present serious character or security risks to the Australian community.
4)      Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia's non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia's security or to the community, this does not necessarily mean that a person should be removed from Australia.
26. Part 2 of Direction no. 75 explains the order that decision-makers are to follow when assessing Protection visa applications which raise character or security concerns. Relevantly, it states:
...
2) Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa-specific ineligibility criteria at section 36(1C).
3)      Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).
a) Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia's non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.
4) If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.
5) The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).
27. The Refugee Law Guidelines (Department of Home Affairs, 1 July 2017), at Chapter 14, relevantly provide:
In considering s 36(1C)(b), each of the following elements should be considered:
·was there a crime?
·is the crime considered to be particularly serious?
·has there been conviction by a final judgement?
·does the person remain a danger to the community of Australia?
While the circumstances of a crime may indicate that the actions represent a danger to the community, decision makers must determine whether the person remains a danger to the community which may take into account any mitigating circumstances, remorse shown by the applicant and any punishments or rehabilitative corrections applied.

The Respondent referred to the differing interpretations of “danger to the Australian community” in s 36(1C)(b) of the Act by Deputy President Tamberlin in WKCG (frequently applied by the Tribunal), and Logan J in the more recent decision of DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18).
In WKCG, Deputy President Tamberlin articulated a broader assessment of “danger” in the context of s 36(1C)(b) of the Act, at [31]:
The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable”.
(Original emphasis)
DOB18 was a decision of the Full Court of the Federal Court which involved the judicial review of an exercise of power under s 501BA of the Act. Logan J, by way of obiter at [83], articulated a narrower interpretation of “danger” in s 36(1C) of the Act:
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”.
(Emphasis added)
The Respondent’s SFIC, at [24], notes that the decision of DOB18 is currently the subject of an application for special leave to the High Court of Australia.
The Tribunal has considered how to apply these differing interpretations of “danger” with respect to the current application at paragraphs [82] and [83] below.
CONSIDERATION
Convicted by a final judgment of a particularly serious crime
The Respondent submitted that the Applicant has been “convicted by a final judgment of a of a particularly serious crime” for the purposes of s 36(1C)(b) of the Act, and referred to the Applicant’s convictions for “aggravated burglary” carrying a maximum penalty of 20 years imprisonment and for “assault occasioning bodily harm” carrying a maximum penalty of five years imprisonment (see Exhibit R2, paragraph [26]). The Applicant concedes that he has been convicted by a final judgment of a particularly serious crime (Exhibit A1, paragraph [8]).
The Tribunal agrees with the parties on this issue, and notes that the Applicant’s conviction for “assault occasioning bodily harm” is a “particularly serious crime” because it is a “serious Australian offence”, under s 5M of the Act. A serious Australian offence is defined in s 5 of the Act to include an “offence that involves violence against a person” and which is punishable for a maximum term of imprisonment of not less than 3 years.
Consequently, the remaining issue for determination by the Tribunal is whether the Applicant is a danger to the Australian community.
Whether the Applicant is a danger to the Australian community
In RWDX Deputy President Boyle summarised relevant case law regarding whether an applicant poses a danger to the Australian community.
These cases included MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 (MVLW), SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 (SZOQQ), BHYK and Minister for Immigration and Citizenship [2010] AATA 662 (BHYK), Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148 (Vabaza) and WKGC v Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG).
In RWDX Deputy President Boyle stated (at [34]-[37]):
34. Considering whether the Applicant poses a danger to the Australian community does not involve the exercise of a discretionary power like s 501 of the Act. If the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision: s 65 of the Act and MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 (MVLW) at [29]-[32]. It cannot balance the danger against the possible harm to an Applicant if returned to their receiving country: SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 at [27]. It is also not necessary to establish that there is a “probability” of harm: WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434 (WKCG) at [31]; see also MVLW at [41]-[45].
35. In the matter of WKCG the Tribunal considered the application of Art 33(2) of the Refugee Convention (see also BHYK and Minister for Immigration and Citizenship [2010] AATA 662 (BHYK)). As Senior Member Tavoularis found in MVLW, given the stated link between Art 33(2) of the Refugees Convention and s 36(1C)(b) of the Act, the analysis and findings in WKCG and BHYK are useful guides to the proper construction and operation of s 36(1C)(b) of the Act. With respect, this Tribunal agrees.
36. The Tribunal in WKCG observed that:
[25] The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
[26] Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
[27] The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs [1911] ArgusLawRp 112; (1977) 18 ALR 36; 1 ALD 98 (Salazar), Brennan J said at ALR 38 ALD 100:
...
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.
37. The Respondent refers to Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148 in which the Federal Court cited Brennan J (as President of the Tribunal) in Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 100 as follows:
... [The Tribunal] noted in particular the statement by Brennan J, (as he then was) as President of the Tribunal, in Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, where at 100 the learned President had said:
the duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of ... [the] case is at an unacceptable level of risk.
MVLW, SZOQQ, Vabaza and BHYK were also cited in the Respondent’s SFIC at [17]-[20]. The Respondent cited the following passage from Deputy President Handley in BHYK, agreeing with the approach of Deputy President Tamberlin in WKCG (at [35]):
…the Tribunal must determine whether there is a real or significant risk or possibility of harm to one or more members of the Australian community. An assessment must be made of the likelihood of the applicant reoffending by reference to past circumstances, including criminal history, and of the applicant’s prospects for rehabilitation.
In summary, in order to consider whether there is a real or significant risk or possibility of harm to one or more members of the Australian community, the Tribunal should consider the circumstances of each individual case, with reference to the following factors identified by the Tribunal in WKCG:
(a)the seriousness and nature of the crimes committed;
(b)the length of the sentence imposed;
(c)whether there are any mitigating or aggravating circumstances;
(d)the extent of the criminal history;
(e)the nature of the prior crimes;
(f)the period over which these prior crimes took place;
(g)the risk of re-offending and recidivism and the likelihood of relapsing into crime;
(h)the criminal record as a whole; and
(i)prospects of rehabilitation.
The factors in WKCG will now each be considered by the Tribunal. The Tribunal observes that some of these factors are similar and overlap, and therefore should be read together.
Seriousness and nature of the crimes committed
The Applicant has a lengthy criminal history which commenced when he was a juvenile. His first offence, committed in March 2008 was “assault public officer”. As a juvenile, the Applicant also committed other offences which are of a serious nature including “common assault” in September 2009, “aggravated burglary and commit offence in dwelling” and “common assault” in April 2010, “deprivation of liberty” in December 2009; and two convictions for “aggravated robbery”, committed in December 2010 and February 2011.
Even if the Applicant’s juvenile convictions are put to one side, his adult offending contains numerous convictions of a serious nature which include violence. The seriousness of this offending is reflected in the nature of the offending, the imposition of prison sentences and in the judicial comments made during sentencing.
For example, on 19 October 2012, the Applicant received convictions for “assault occasioning bodily harm”, “wilfully and unlawfully destroy or damage property”, and “without lawful excuse trespassed on a place”, and was sentenced to concurrent terms of imprisonment for these offences (discussed in further detail below). These convictions resulted in the Applicant receiving a written warning that further offending may result in his Visa being cancelled (as discussed at paragraph [10] above).
The following comments from the sentencing Magistrate demonstrate the serious nature of this offending, which involved the Applicant assaulting a member of the public at a shopping centre (T3, pages 56-57):
You’d made a decision to drink a huge amount of alcohol and then behaved in a manner that just had no regard to the welfare, the interests, the wellbeing of anyone else in either of these situations and you’re lucky you’re not coming before the court for other assaults arising out of the incident at Midland Gate. Again at a time when it would be reasonable to suspect other people to be out and about in the shopping centre at that time. You were drunk, you were behaving without any regard for anyone else and it’s only the fact that these other three people didn’t want to file any charges, make any complaints, that that has ended up as a disorderly conduct.
…
There’s nothing before me to suggest that there was any actual provocation by Mr [victim’s name omitted]. You’ve come along in your drunken state not really having any idea what was going on, gone up to this man, assaulted him, assaulted him in a serious manner, leaving him with an injury to his head that required stitches and then continued that rampage by throwing items at the glass doors of these premises, smashing the glass doors and it was only when the police came and eventually arrested you that brought an end to the situation, it seems. Then you were released on bail and a week later in the face of that you were smashing into another premises, again heavily affected by alcohol and your record doesn’t help you, Mr [Applicant’s name omitted].
…
You’ve reached a point, and it’s tragic to say so, Mr [Applicant’s name omitted], wherein my view the overriding consideration now is the protection of the community even if, as I’ve said, that’s for a limited period of time. These are serious matters. They require a punishment that properly reflects the seriousness of these matters and you haven’t done anything until now to indicate that you are ready or willing to take advantage of rehabilitation within the community and in my view, the only appropriate penalty is imprisonment and turning my mind to all the factors I’ve considered in regard to whether that sentence should be suspended, in my view it should not be suspended. Just too serious.
You present as too much of a danger to the public and no (indistinct) yet of any willingness by you to address the problems that would lead you to stop offending…
As noted in the above background section, on 23 October 2014 the Applicant was convicted of “aggravated burglary and commit offence in dwelling” and “attempt to pervert justice”. This offending involved the Applicant breaking into a residential home with several other persons during the night to steal alcohol, and resulted in the homeowner being assaulted. In the Tribunal’s opinion, this offending is of a serious nature, as indicated by the sentencing Judges’ comments which include reference to the impact of the offending on the victim and his family (T3, pages 61-62):
… Both offences, by their nature, are so serious that they are ordinarily punished by terms of immediate imprisonment.
…on 18 July last year, you and a number of others unlawfully entered the home of the [name omitted] where the two parents and their children were asleep. The offence occurred at about 4.35 am.
You and the others located alcohol which you put into a laundry basket and a number of other items of value were found and taken and they included electronic devices, including a laptop computer, an iPad, an iPhone and a number of games and related items, all very valuable and valued by the owners.
The adult male occupant, Mr [name omitted], woke up having heard a noise that he thought might have been made by one of the children and he confronted you and your co-offenders. He was dazzled by a torchlight that was shone in his face and he was then struck with an object on the arm causing him to suffer pain and discomfort. There was a struggle before you and the others ran from the house. It is not alleged that you were the person that struck Mr [name omitted] and I’m not going to deal with you as if you were but you are liable for the harm that he suffered by reason of your involvement in this offence.
… The offending in respect of count 1 is aggravated by your being in company with others, the suffering of bodily harm by the victim and your knowledge that there were persons in the place, the place was a dwelling.
Now, those circumstances are reflected in the maximum penalty and will not be given double weight but I do note that the offence occurred at night and involved a house being entered in circumstances where there was a real risk of confrontation and a corresponding risk of injury due to violence and that materialised in this case.
I have read the victim impact statement of Mr [name omitted]. He indicates that the arm injury suffered involved extensive bruising and some abrasions and it caused him pain for a couple of weeks. He and his family have been made anxious as a result of the offence.
They’ve now fitted a monitored alarm system which is set every night. The children are scared to be at home at night. At the time they were aged 15, 10 and five. Mr [name omitted] has also been distressed and has had sleep problems since the offence, occasionally requiring medication.
The impact on the victims is consistent with what one would expect to be the effects of a serious property offence of this nature involving unlawful entry at night by a number of persons and a confrontation leading to an assault. The amount and variety of the goods stolen, even though they were insured, is significant in terms of the impact on the victim.
As was also noted in the background section above, approximately four days after being sentenced for these offences, on 27 October 2014, the Applicant was sentenced to further terms of imprisonment for the offences of “assault occasioning bodily harm”, “aggravated burglary and commit offence in place”, and for two counts of “steal motor vehicle”. The Sentencing Magistrate stated (T3, page 68):
… I am going to sentence you today for these offences. They are serious offences and that’s evident by the maximum penalty which is applicable or which can be imposed by this court within the umbrella of the total maximum for the sentence for these matters; for the assault occasioning bodily harm, up to two years imprisonment, and for the aggravated burglary in a place also carrying significant imprisonment.
… I note that you’re a co-offender in each of those offences.
… I think the most serious matter before me, Mr [Applicant’s name omitted], is the assault occasioning bodily harm and in which you were part of a group of people who set upon the victim, punching to the face and head, resulting in the victim being knocked unconscious and, indeed, suffering fractures to the face and a slight bleed to the brain. My view is that that’s a serious assault, Mr [Applicant’s name omitted], that you took part in. …
Also there is the dishonesty offences of burglary and stealing the motor vehicles, which I understand that in respect of all of these matters you were intoxicated. Now, obviously, your sentence has to be commensurate with the seriousness of what you’ve done. My view is that, in particular for the assault occasioning bodily harm, that a sentence of imprisonment is appropriate and, indeed, for the burglary.
Each of the sentencing comments refers to the Applicant’s violent offences as being serious. The Tribunal agrees, noting that violent offences can result in significant physical and psychological harm to victims, and that the victims of the Applicant’s offending were innocent members of the public, and that the offending was unprovoked.
As is evident from the Table of the Applicant’s adult offending, the Applicant also has other convictions for property damage, trespass, disorderly behaviour, possessing stolen or unlawfully obtained property, several convictions for stealing, drugs possession, and breaches of bail. These convictions are of a less serious nature than the offences detailed above involving violence, however their number and frequency are, in the Tribunal’s opinion, indicative of an overall trend of disregarding Australian laws and of the Applicant being undeterred by fines and sentences of imprisonment.
Length of the sentence imposed
As shown in the above Table of the Applicant’s juvenile offending, the Applicant was given four concurrent custodial sentences as a juvenile, commencing on 10 April 2010 for the offences of “aggravated burglary and commit offence in dwelling”, “common assault”, “demanding property by oral threats” and “deprivation of liberty”, with the longest of these sentences being up to eight months. He was sentenced to further concurrent terms of detention on 26 July 2011 for the offences of “(att) stealing from person of another”, together with two convictions for “aggravated robbery”, with the longest of these sentences being for 15 months. Custodial sentences are usually imposed by the judiciary as a last resort, particularly for juvenile offenders. Consequently, the Tribunal observes that these are very significant periods of detention to be imposed on a juvenile and tend to indicate that this offending was of a serious nature.

As stated in the above Table of the Applicant’s adult offending, on 19 October 2012, the Applicant was sentenced to 8 months imprisonment for “assault occasioning bodily harm”, three months imprisonment for “wilfully and unlawfully destroy or damage property”, and two months imprisonment for “without lawful excuse trespassed on a place”.
On 23 October 2014 the Applicant was sentenced to 16 months imprisonment for “aggravated burglary and commit offence in dwelling” and six months imprisonment for “attempt to pervert justice”, to be served concurrently. Approximately four days later, on 27 October 2014, the Applicant was sentenced to 12 months imprisonment for “assault occasioning bodily harm”, 10 months imprisonment for “aggravated burglary and commit offence in place”, and to two terms of three months imprisonment for two counts of “steal motor vehicle”.
The Tribunal finds that the imposition of these custodial sentences, together with their length and frequency, indicates the seriousness with which the criminal justice system regards these types of offences. It is also of concern to the Tribunal that the Applicant was not deterred from committing further offences after serving terms of imprisonment, and after receiving a written warning that his Visa may be cancelled if he committed further offences.
Mitigating or aggravating circumstances
The Applicant has a history of past trauma. He fled Sudan as a child, spending time in a refugee camp in Kenya before coming to Australia with his two brothers and older sister (T3, page 56).
Judge Staude, when sentencing the Applicant on 23 October 2014, noted that the Applicant had (T3, page 64), “experienced significant trauma in Sudan” and that both of the Applicant’s parents were killed in 2003. Judge Staude also referred to the Applicant’s alcohol abuse being a “symptom of the unresolved emotional and psychological problems that clearly have the origins in your traumatic past” (T3, page 65).
In information provided in support of the Applicant’s “Request for Revocation of a Mandatory Visa Cancellation under section 501(3A)” lodged with the Department of Immigration and Border Protection on 6 October 2015 (T3, page 99), the Applicant referred to the “Tribal war and political unrest” in Sudan and stated:
In the small village in which we lived the random killings and other brutal acts of violence were commonplace among feuding tribal groups.
I witnessed the brutal and senseless killing of my parents and was forced to escape to Kenya to seek asylum with my brothers and sisters.
In Kenya I was processed by the United Nations as a refugee and was some time after relocated to Australia to begin a new life…
The Applicant’s sister also described his difficulty in adjusting to life upon arrival in Australia (Exhibit A3, paragraph [3]):
Migrating to a new country was hard for us at the beginning. We had to learn a new language, culture and way of life. Unfortunately, this transition for my brother was at times very difficult. [The Applicant] became more distant from the family, began associating with the wrong people and started drinking. There is no doubt in my mind that this is what led to his bad behaviour, disrespect for the law and his imprisonment.
The Tribunal accepts Staude DCJ’s observations that the Applicant suffers from emotional and psychological problems due to his history of past trauma, which in turn contributed to his alcohol dependency and offending. The Applicant’s history of past trauma is a mitigating factor.
Extent of the criminal history
The Applicant has a lengthy history of offending in Australia. As noted above, the Applicant committed his first offence less than two years after arriving in Australia. In total, he was convicted of 26 offences as a juvenile and a further 22 offences as an adult.
Nature of the prior crimes
As discussed above, the Applicant’s adult convictions include offences of violence against innocent members of the public, burglary, other property related offences, attempting to pervert the course of justice and breaches of bail.
Period over which these prior crimes took place
The Applicant’s offending spans a six year period from 2008 to 2014. As the above Table of the Applicant’s juvenile offending and Table of the Applicant’s adult offending show, his offending occurred fairly consistently throughout this period, with the exception of the periods where the Applicant was in prison or detention.
Risk of re-offending and recidivism and the likelihood of relapsing into crime
As submitted by Mr Udall, the Applicant has been in continuous custody for a period of approximately 5 years. He was in criminal custody from October 2014 to October 2015, and then in immigration detention from October 2015 to the present (Exhibit A1, paragraph [9]). The Applicant gave evidence about the impact that being in detention for a long period has had on him, including that he had reflected on his past actions (transcript, pages 12-13):
MR UDALL:… you’ve been in detention a long time now. What impact has that had on you?
APPLICANT: It has been difficult for me. Since I’ve been in detention I’m missing my family and I feel useless, you know. I feel like I let everybody down, you know, and I brought disappointment to my family and - yes.
MR UDALL: … do you consider yourself to be a dangerous person?
APPLICANT: No, I don’t.
MR UDALL:Why do you say that?
APPLICANT: I say that because the time that I spent in detention I took time to learn about myself and I took a lot of time and - I came from a Christianity family and violence is never part of me, it’s never at all. I know that - I thought that it was the best way to deal with my problems by drinking alcohol and that, and that’s the only way to get rid of my problem, but that only brings issues to me. I don’t like hurting people, you know. Most of my crimes are violent and fighting and all that, but since I’ve been in detention I realised that it’s time to change, you know. I can’t keep being like that, keep hurting people and doing things like that. I’ve got to change, you know. I look back and I realise those - that I’ve done bad things to them, those that I have beaten up and all that, I realise that is the wrong thing to do, you know. That’s not who I am at all. That’s not who I am. I’m not a violent person. Detention has made me a better man. It has changed my life a lot. I feel like I let my family down and I feel remorse for those that I have hurt, you know.
The Applicant further stated that he regrets his offending and that he is a “changed man”. In summary, he stated that he was fearful that if he did not change he could end up being returned to Sudan and possibly being killed or tortured (transcript, page 24). The Tribunal accepts the Applicant’s evidence that he regrets his offending (transcript, pages 15, 28), that he wants to change, and that he is genuinely fearful of being returned to Sudan. Consequently, his desire to avoid future detention, incarceration and his fear of removal to Sudan, which he now seems to appreciate, may be factors which deter the Applicant from offending in the future.
The Applicant’s risk of re-offending is likely to be significantly reduced if he is able to abstain from alcohol if he is released into the Australian community. In his statutory declaration he stated (Exhibit A2, paragraphs [3]-[4]):
My past offending is serious and I admit that. Much of this was related to my past addiction to alcohol, being with the wrong people and not listening to my real friends and family.
4. Being in detention brought many home truths to me, about who I am and the terrible things I have done. I understand now that I was addicted to alcohol and in poor mental shape. Since being in detention, I have attended a number of courses as well as counselling….
In his evidence at the hearing the Applicant stated his belief that he will not drink alcohol again because he did not want to let himself or his family down, and did not want to end up in detention again (transcript, page 28).
However, the Applicant’s alcohol problem was a serious and persistent one. In his evidence at the hearing the Applicant stated that he began drinking when he was 16 years of age and he developed a drinking habit of two bottles of Whiskey or wine a day. He agreed that his offending (both adult and juvenile) was attributable to his alcohol problem (transcript, pages 14-16). The following exchange is relevant (transcript, pages 15-16):
MR GERRARD: What happens when you get drunk?
APPLICANT:      If something pisses me off or somebody pisses me off, I react to it differently than when I’m normal.
MR GERRARD: Can you expand on that? What do you mean by react differently?
APPLICANT:      Like, I become really violent.
MR GERRARD: You become really violent?
APPLICANT:      Yes.
MR GERRARD: You mentioned in your evidence to Mr Udall that you regret some of those actions. You said you beat people up, is that correct?
APPLICANT:      I regret them, yes.
MR GERRARD: So you did beat people up?
APPLICANT:      I did people up, yes. Everything that I have done, I regret them.
MR GERRARD: You become violent when you drink?
APPLICANT:      Absolutely, yes.
MR GERRARD: But not all of the offences you committed are - they’re not limited to violence. There are other things, too, like demanding property from people, breaking into people’s houses. So you would steal as well?
APPLICANT:      I steal, yes.
MR GERRARD: What connection does that have to your alcohol use?
APPLICANT:      Well, with friends I - like, with friends, yes. Normally they’re all mixed up together because when I’m drunk I did do stupid things, you know. I get myself involved in every kind of - stealing, all that, yes.
…
MR GERRARD: All right. You say that when you became drunk you did stupid things?
APPLICANT:      Yes.
MR GERRARD: Some of those stupid things involved you reacting violently to situations. You say when someone pisses off you then react violently to that. But what about some of these other offences that you’ve been convicted of, like burglary, demanding property by threats, stealing? You agree that you’ve been convicted of those offences?
APPLICANT:      I agree, yes, I agree.
MR GERRARD: I’m just trying to understand why you say those offences are also connected to your alcohol use?
APPLICANT:      Yes, they are connected to alcohol because I did the things when I wasn’t thinking right, you know, when I was drunk on alcohol.
MR GERRARD: So it goes back to you just making stupid decisions?
APPLICANT:      It goes back to it, yes, it goes back to it.
There is a likelihood that if the Applicant resumes his alcohol abuse that he would commit further offences, including possibly violent offences. This is evident from the following exchange under cross-examination, during which the Applicant agreed that if he were to drink again, he would be likely to become violent again (transcript, page 28):
MR GERRARD: Do you accept that if you do drink again, that you’ll react in the same way?
APPLICANT:      If I drink again?
MR GERRARD: Yes?
APPLICANT:      Well ... I believe so. I believe so. I believe so.
MR GERRARD: So you think that you if you do drink again, you’ll become violent again?
APPLICANT:      I don’t know how to answer that question.
MR GERRARD: All right. Let me put it to you a different way. You gave evidence that when you used to drink, it would make you violent or it would make you react violently to situations.
APPLICANT:      To situations, yes.
MR GERRARD: Yes. So, if you drink again - and I understand that you’ve said that you’re not going to but if you do drink again - do you say that you’re likely to react in the same way that you used to?
APPLICANT:      I believe so, yes. I believe so.
The Tribunal is also concerned, given Staude DCJ’s sentencing comments, that there are underlying emotional and psychological issues from the Applicant’s traumatic childhood that underlie his alcohol abuse, and which have not been adequately treated. More specifically, when sentencing the Applicant on 23 October 2014, Staude DCJ commented on the Applicant’s dependency on alcohol as a symptom of underlying emotional and psychological problems which also required treatment (T3, pages 64-66):
You appear to have, at least potentially, a number of possible psychiatric problems requiring professional intervention and that’s remarked upon in the pre-sentence report. You have used cannabis and methylamphetamine in the past and seem to be vulnerable to serious drug abuse if the underlying personal problems that you have a not adequately dealt with.
…
I am concerned about what support you will have upon your release. I’m told that you may be able to find accommodation in Narrogin and work there but it seems to me that you probably require some intervention in terms of social support upon your release because it seems to me that you are at great risk of reoffending and being brought back to court in the future if your behavioural problems are not dealt with. And they can’t be dealt with until some of those underlying emotional and psychological issues are dealt with.
…
Alcohol abuse, it seems to me in your case, and other substance abuse is merely a symptom of the unresolved emotional and psychological problems that clearly have the origins in your traumatic past. If those matters are not addressed properly then it’s unlikely that you’ll be able to remain abstinent from alcohol and drugs. So yours is a case requiring special and careful attention if there is to be any real prospect of rehabilitation. You are capable of having a meaningful and productive life in the community but you need to accept help in order to do so.
With respect to the treatment that the Applicant has undertaken, the Tribunal accepts that the Applicant has made substantial efforts to access all treatment options available to him whilst in detention. The Applicant has not been able to access intensive treatment programs which target his specific treatment needs because they were not available to him in immigration detention. The Applicant did, however, attend short courses facilitated by a counsellor whilst he has been in immigration detention (Exhibit A2, paragraph [4]). The Applicant submitted copies of his attendance certificates for these courses which have the following titles (attached to Exhibit A2):
(a)“Relationship/Conflict - Good Stress V Bad Stress - Combat Life Traps, What Is Domestic Violence? - Self-esteem/ Self-Image” dated 16 January 2017;
(b)“Relationship/Conflict - Good Stress V Bad Stress - Self-esteem/Self-Image - What Is Domestic Violence? - Combat Life Traps” dated 24 January 2017;
(c)“Substance Abuse/ Addiction. Skills Anger/Violence - Why Do I Reoffend?” dated 5 April 2017;
(d)“Breaking My Cycle of Addiction” dated 15 May 2017;
(e)“Combat my Life Traps (schema) Part 2” dated 2 June 2017
(f)“Combat My Life Traps (schema) Part 3” dated 7 June 2017;
(g)“Getting to Know You Group Cognitive Therapy 1” dated 14 June 2017;
(h)“Getting to Know You: Schema Group Cognitive Therapy 2” dated 21 June 2017; and
(i)“Getting to Know You: Schema Group Cognitive Therapy 3” dated 28 June 2017;
The Applicant also participated in a session of an anger management course for 2 hours on 21 August 2019. In addition to attending the above short courses which were facilitated by a counsellor, the Applicant also attended a “Basic Life Support” training course on 16 March 2017 and attained a competency in “Work safely in the construction industry” on 15 April 2015 (attached to Exhibit A2).
The Applicant also participated in a voluntary course called “Life Skills” in July, August and September 2019. The topics stated in the certificates of participation for the Applicant included: understanding substance use disorder; managing stress; change, relapse prevention and letting go; managing strong emotions; understanding the fight or flight response; understanding the process of dependency; the biological effects of substance abuse; self-regulation and inter-relationships; and understanding lapse and a relapse. The Applicant also attended a weekly men’s group in July August and September 2019. Topics listed in the certificate of participation included; anger management, coping with stress, mindfulness, understanding family violence, understanding mental illness, healthy relationships, positive parenting and peer support (Exhibit A5).
In his evidence at the Tribunal hearing the Applicant described attending approximately 11 sessions with a counsellor up until the time of the hearing. In his evidence he described discussing his issues with alcohol with his counsellor, and in doing so was able to show some insight into why he abused alcohol (transcript, page 11):
MR UDALL:What kind of things did you talk about with the counsellor? What did they ask you and what was the topic or the subject of the talks with the counsellor?
APPLICANT: Well, we talked about, you know - we talked about what caused me to drink alcohol heavily, you know. And, yes, what - the cause, what started me to start drinking a lot, you know. And, well, the counsellor teach me how to not relapse, you know, and to get back to alcohol and all that and how to keep away from alcohol, you know.
MR UDALL:Mr [Applicant], you told us a moment ago that you were discussing with the counsellor finding out what was the cause or the reason for drinking in the past. What was that, please? What did you discuss there?
APPLICANT: The life that I went through, you know, the loss of my parents. Because when I first came to Australia I was a little bit lost and lonely so I thought the only way that I can avoid my problem is by just drinking, you know, and that never do anything, that just leads me into more troubles, you know. And from there on I just keep up with just doing the counselling and keep myself away from alcohol, because when I drink alcohol I don’t think proper and I get into trouble and I get into fights and that and I hurt people, you know. And I don’t want to - I don’t want to be that man any more. So I just - I just - I just realised that what was making me drink alcohol was that whenever I stressed about the past, I drink and that. But I realised that I got to - I got to face my problems, you know, and I got to be a man, you know. I can’t continue on past behaviour the way that I was. Yes.
The Applicant’s attendance at numerous voluntary courses is positive; however, the courses were of short duration (and mostly appear to be over part of a day), with the certificates only recording attendance. The Tribunal does not have before it any comments from course facilitators as to the treatment gains made by the Applicant as a result of undertaking these courses. Additionally, whilst the Tribunal appreciates that the Applicant has made an effort to do all voluntary courses available to him, in the Tribunal’s opinion there has not been an intensive enough focus on the Applicant’s alcohol addiction, which has a strong relationship to his offending behaviour. Only two of the voluntary courses above appear to deal specifically with substance abuse and addiction.
With respect to the Applicant’s underlying emotional and psychological issues, the Tribunal also regards it commendable that he has sought to undertake counselling with a counsellor on approximately 11 occasions. However these are sessions with a counsellor and not a psychologist. The Tribunal is not satisfied that the Applicant has had intensive enough psychological treatment to deal with the underlying emotional and psychological issues which contributed to his abuse of alcohol and in turn to his offending. This is especially given Staude DCJ’s comments that if the Applicant’s emotional and psychological problems were not properly addressed it is unlikely that he will be able to remain abstinent from alcohol and drugs (T3, pages 65-66). Judge Staude noted that the Applicant required “special and careful attention if there is to be any real prospect of rehabilitation”. In the Tribunal’s opinion, whilst the Applicant has attempted to access all courses and treatment available to him in immigration detention, the short voluntary courses and counselling that he has completed to date fall short of the special and careful attention needed to sufficiently reduce the likelihood of the Applicant reoffending in the future so that he is not a danger to the Australian community.

Three incidents were recorded with respect to the Applicant in 2016 and 2017 in which he was found in proximity with homebrew alcohol whilst in immigration detention (see transcript, pages 26-27). These incidents potentially call into question the extent of any gains made by the Applicant as a result of attending these courses, as well as the Applicant’s claims that he will no longer consume alcohol. In one incident it was recorded that the Applicant and another detainee were caught carrying a bucket of home brew alcohol (in May 2017); and in another incident (July 2017) an officer found a bin of homebrew in a bathroom the Applicant shared with another detainee. In an earlier incident a room search found a bucket of homebrew in a common area between two rooms, one of which was occupied by the Applicant (December 2016) (T9, pages 356-357). At the hearing the Applicant denied consuming any alcohol and stated that he was not involved with any home brewing in immigration detention (transcript, page 12; 26-28). The Applicant’s answers with respect to this homebrew were somewhat contradictory (see transcript, pages 37-38), and there is some doubt in the mind of the Tribunal as to the Applicant’s knowledge of this homebrew. The Applicant’s explanation that, “I had no idea about these homebrews” (transcript, page 28) does not seem plausible given the report that he was helping to carry a bucket of homebrew in one incident, and in another the homebrew was found in the Applicant’s shared bathroom with officers reporting an alcoholic smell when they entered the room. It is therefore difficult to accept that the Applicant had no knowledge of this homebrew. Mr Udall submitted that little or no weight should be placed on these incident reports because the evidence is “uncorroborated and circumstantial at best” (transcript, page 38). However, the Tribunal notes that there were three separate reports concerning the Applicant being in the proximity of homebrew on three separate occasions. Accordingly, the Tribunal finds that it should only place minimal weight on these incidents as they are recorded in incident reports (not formal convictions), the extent of the Applicant’s knowledge and involvement is unclear, and additionally, there is no evidence that the Applicant consumed any alcohol whilst in detention.
Although the Applicant states that he is a changed man, and that he will not resume alcohol use, this resolution has been made in the context of immigration detention. Whether the Applicant has indeed controlled his alcohol problem, and whether he can abstain from alcohol if released into the community is uncertain. The Tribunal remains concerned that if the Applicant were released into the Australian community and resumes his alcohol consumption, there is a real and substantial risk that he will commit further offences, including violent offences.
In summary, the Tribunal accepts that the Applicant has done his best to access rehabilitative courses available to him in detention. However, the Tribunal is of the opinion that the Applicant has received very minimal treatment for substance abuse and violent offending by attending voluntary courses of a very short duration, with only two of these courses dealing with substance abuse. The Applicant has not been able to obtain counselling with a psychologist to address his underlying emotional and psychological issues. He has only been able to attend approximately 11 counselling sessions with a counsellor. The Tribunal accepts that the Applicant endeavoured to obtain a report from his counsellor, but was not able to (transcript, page 11-12).
There is also no objective evidence of any treatment gains made by the Applicant as a result of attending the short courses because they were not intensive courses where treatment needs and gains are assessed and measured. In the Tribunal’s opinion, these short courses do not constitute the “special and careful attention if there is to be any real prospect of rehabilitation” referred to in the passage above from the sentencing remarks of Staude DCJ (T3, page 66). Given the extent of the Applicant’s alcohol abuse and its centrality in his offending, including violent offending, the Tribunal is of the opinion that more intensive treatment, including psychological counselling for his underlying psychological issues (as identified by the sentencing magistrate on 27 October 2014 – see T3, pages 68-69) due to his childhood trauma, is required in order for the Applicant not to be a danger to the community.
Criminal record as a whole
The length, nature and extent of the Applicant’s criminal record, his frequency of offending, and his failure to be deterred from further offending by court imposed orders, terms of imprisonment and a warning that his Visa may be cancelled, are of concern to the Tribunal in that they tend to indicate a strong likelihood of future re-offending.
Prospects of rehabilitation
The Tribunal notes that the Applicant has some family and community support which may assist in his re-integration and rehabilitation if he is released into the Australian community. Specifically, the Tribunal notes that the Applicant has the support of his sister who resides in Victoria. She has even offered that the Applicant can reside with her if he is released into the Australian community, and stated that there are other family members in Western Australia who are willing to support the Applicant. The Applicant’s sister gave evidence that she believed that he had changed, that he has learned from his mistakes, has matured and will not drink again (transcript, pages 33-34; Exhibit A3, paragraphs [5]-[7]). The support of the Applicant sister, and the Applicant’s remorse for letting his family down, are likely to be protective factors which may reduce the likelihood of the Applicant reoffending.
The Tribunal also notes a letter from a Chairperson of a community association dated 17 September 2019 (Exhibit A4), who has known the Applicant since 2007. The letter expresses “full support” for the Applicant, and stating the belief that the Applicant has “learned a big lesson in the prison” and that he will not reoffend and that he will be a good community member. The Tribunal finds that this letter is indicative of further support for the Applicant in the community which may assist in reducing the likelihood of the Applicant reoffending.
The Tribunal has already discussed the voluntary courses and counselling undertaken by the Applicant, which although commendable are, in the Tribunal’s opinion, insufficient to have adequately addressed the Applicant’s underlying emotional and psychological issues and his substance abuse, which is a contributing factor to his offending. The Tribunal is concerned that whilst these treatment issues are outstanding, the Applicant may re-lapse into alcohol use, and as the Applicant himself admitted, if that were to happen he is likely to become violent again (transcript, page 28). The possibility of such a re-lapse could be mitigated by the Applicant having a comprehensive plan in place, which would also assist with his rehabilitation and reintegration into the community if he were to be released. The need for a plan was referred to by Staude DCJ who, when sentencing the Applicant, stated that the Applicant appeared to have “a number of possible psychiatric problems requiring professional intervention”; was “at great risk of reoffending and being brought back to court in the future if your behavioural problems are not dealt with”; and that “It would be a disaster for you [the Applicant] to be released without a plan in place for such [community] support” (T3, pages 64-65). The Tribunal also notes the comments of the sentencing Magistrate on 27 October 2014 who stated, “you really do need to get some psychological counselling” (T3, pages 68-69).
The Applicant was asked about his lack of a plan in the following exchange (transcript, pages 23-24):
MR GERRARD: The reason I have asked you about a plan, Mr [Applicant], and not having one is that you agreed that District Court Judge Staude when he said it would be a disaster for you to be released into the community without a plan and that was accurate at this time. So why should this Tribunal reach a different conclusion when you also don’t have a plan? I accept that you might be willing to engage in counselling and seek psychological assistance, but you don’t have a plan, so why should this Tribunal reach a different conclusion that District Court Judge Staude, who said it would be a disaster?
APPLICANT: Well, that was in the past. I agree. Why I agreed to that is because, when he said that, after that, I was sent into jail and I believed that if he actually let me out that time, I couldn’t continue on that path or doing the same thing, drinking and doing all that kind of things, you know. When I came to detention, detention opened my eyes wider and bigger and I realised that I shouldn’t be continuing doing the things I was doing, getting involved with bad friends and keep making bad decisions and everything like that. I shouldn’t be doing that, you know. I disappoint my family, me keep doing that. Australia is a great country. They brought me and my family here from a suffering place, a place of war. If it wasn’t for Australia, I’d probably be dead by now. I don’t know where my life would be. So we came here for great - to do something good and to go to school and do positive things. I shouldn’t be - I realise - you know, I’ve been in detention. I’ve realised that the things that I was doing is affecting not only me but my family also too. And I shouldn’t be behaving recklessly like that, hurting people and spilling blood. It shouldn’t be that way. That’s why ever since I’ve been here, I regret every single thing that I have done. I regret them a lot. There’s not a day that goes by without regretting. So as I’ve been here spending my time, I’ve been doing counselling, doing courses, keeping myself away from trouble. And even when somebody says something bad to me, a detainee in detention or anything like that, I learn to walk away from all this. I learn to keep myself away from alcohol and drinking and doing that. That’s what alcohol keep doing to me and keep getting me into this kind of trouble and keep causing me to hurt people, so I learn to keep myself away from all this and that. The man I used to be is - I’m not that man anymore, so I am fully a changed man. I believe that if I was to be letting out, I would not do the things that I was doing before in the past. This is the reason why I admit that if he would let me out, the judge, I would have continued doing things that I was doing before.
MR GERRARD: So why is detention different to jail?
APPLICANT: Detention is different because detention - I’ve been in detention for four years and I was facing being deported back to a place that I’d probably be killed and tortured. I learned that, you know, if I keep going like this and I don’t change my ways from here on, I could end up back in Sudan, wherever I came from. I could end up getting killed there and everything like that. So I realised that it’s time for me to change, to change my ways, and not to continue like that, doing the thing that I have done. Sometimes I don’t like to think about all the things that I have done because they - I’m not proud of them. I’m not really proud of them, the thing that I have done, like hurting people and breaking into houses. That’s not who I am at all. That’s not who I am and violence is not in my nature. I’m not that kind of person. I’m a normal, quiet person. Even the way that I live in detention, I get along with everybody, with detainees and everything like that.
In closing, Mr Udall submitted that “[the Applicant's] plan is his ongoing rehabilitation, both now and into the future” (transcript, page 38). However, given Staude’s DCJ’s comments, the Applicant’s long history of offending, his history of significant alcohol abuse which contributed to his offending, and the lack of intensive treatment that the Applicant has done to address his trauma and underlying emotional and psychological issues, the Tribunal is concerned that the Applicant does not have a more specific and intensive rehabilitation plan in place. The exchange above indicates that it is the Applicant’s intention to no longer consume alcohol, and the Tribunal accepts that he has developed some insights into his abuse of alcohol and its links to his underlying trauma. However, the Tribunal remains concerned that the Applicant’s alcohol issues have not been addressed adequately given the minimal treatment he has undertaken for alcohol abuse in the controlled environment of immigration detention.
Evaluating whether the Applicant is a danger to the Australian community by applying the factors in WKCG
Subsection 36(1C)(b) is a disentitling provision. It makes it a criterion for a protection visa that the Applicant is not a person whom the Minister (and in this case the Tribunal) considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. A finding that an applicant is a danger to the Australian community will mean that they do not meet the criterion for a protection visa, even if (as is the case in this application) the applicant is found to be a refugee and that there is a real risk of suffering significant harm if returned to their country of origin.
As noted above, Deputy President Tamberlin and Logan J expressed different approaches to the meaning of “danger” in s 36(1C)(b) of the Act. Mr Gerrard submitted that the comments of Deputy President Tamberlin and Logan J are largely consistent, however, where Logan J departs from Deputy President Tamberlin is in the view that there needs to be a “present and serious risk” for there to be a “danger”. Mr Gerrard further submitted that there was no need for the Tribunal to reconcile the tension between the two approaches because, regardless of the approach adopted, the Applicant would be a risk to the Australian community, even on the more restrictive approach of Logan J.
The Tribunal agrees with Mr Gerrard’s submission and finds that, regardless of which interpretation is applied, after an evaluation of the factors in WKCG there are reasonable grounds to conclude that the Applicant is a danger to the Australian community. That is, based on an evaluation of the factors in WKCG, the Tribunal finds that should the Applicant be released into the Australian community, there is a real or significant risk or possibility of harm to one or more members of the Australian community. The Tribunal finds that the risk could be properly described as “present and serious”.
The specific factors in WKCG that were indicative of the Applicant being a danger to the Australian community were discussed in detail above, but in summary included the:
(a)serious nature of some of the Applicant’s offences which include violence against members of the public;
(b)length of the sentences imposed for his offending which included a period of detention as a juvenile, together with numerous concurrent sentences of imprisonment as an adult which again reflects the seriousness of his offending;
(c)Applicant’s lengthy and consistent criminal history over an approximate six year period including his failure to be deterred by court imposed orders, a warning that his Visa may be cancelled if he were to offend further, and custodial sentences;
(d)risk of reoffending and recidivism and the likelihood of relapsing into crime given the Applicant’s underlying emotional and psychological issues due to trauma, and his alcohol abuse which is connected to his offending. He has attempted some limited rehabilitation in immigration detention, but it falls short of the special and careful attention required; and
(e)lack of a comprehensive plan if he were to be released into the community to prevent relapse and recidivism.
The factors weighing in the Applicant’s favour (including the mitigating factor of his childhood trauma, his remorse, desire to change, length of time in detention, attempts to access courses to facilitate his rehabilitation, and family and community support) are not sufficient to mitigate the Tribunal’s finding that the Applicant is a danger to the Australian community.
CONCLUSION
For the reasons outlined above, the Tribunal considers that the Applicant does not satisfy the criterion in s 36(1C)(b) of the Act because the Applicant:
(a)has been convicted by a final judgment of a particularly serious crime; and
(b)is a danger to the Australian community.
DECISION
Accordingly, the correct or preferable decision is to affirm the Reviewable Decision of the delegate of the Respondent dated 3 April 2019 to refuse the Applicant a subclass XA-866 Permanent Protection Visa under s 65(1)(b) of the Migration Act 1958 (Cth).

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

........................ [sgd]...........................................
Associate
Dated: 7 January 2020
Date of hearing:  26 September 2019
Representative for the Applicant:             Mr M Udall
Solicitors for the Applicant:           Martin Udall & Associates
Representative for the Respondent:         Mr A Gerrard
Solicitors for the Respondent:                   The Australian Government Solicitor

[2020] AATA 9

7 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Offence	Offence Date	Conviction Date	Sentence
Assault Public Officer	9 Mar 2008	19 Sep 2008	YCBO: 3 MTHS (SUPVSN)
Breach of Bail Undertaking	14 Aug 2008	19 Sep 2008	YCBO: 3 MTHS (SUPVSN)
Give False Personal Details to Police	9 Mar 2008	19 Sep 2008	YCBO: 3 MTHS (SUPVSN)
Give False Personal Details to Police	5 Sep 2008	19 Sep 2008	YCBO: 3 MTHS (SUPVSN)
Obstructing pubic officers	9 Mar 2008	19 Sep 2008	YCBO: 3 MTHS (SUPVSN)
Possessing stolen or unlawfully obtained property	5 Sep 2008	19 Sep 2008	YCBO: 3 MTHS (SUPVSN)
Common Assault	12 Sep 2009	14 Jan 2010	JUV.JUST.TEAM Adjourned. Return to court
Threats to injure, endanger or harm any person	12 Sep 2009	14 Jan 2010	JUV.JUST.TEAM Adjourned. Return to court
Aggravated Burglary and Commit Offence in Dwelling	13 Apr 2010	4 May 2010	DETENTION: 6 Months CONCURRENT FROM 10 Apr 2010
Common Assault	13 Apr 2010	4 May 2010	DETENTION: 3 Months CONCURRENT FROM 10 Apr 2010
Demanding Property by Oral Threats	9 Dec 2009	4 May 2010	DETENTION: 8 Months CONCURRENT FROM 10 Apr 2010
Deprivation of Liberty	9 Dec 2009	4 May 2010	DETENTION: 8 Months CONCURRENT FROM 10 Apr 2010
Stealing	9 Dec 2009	4 May 2010	NO PUNISH – S 67: Time spent on remand in custody
Wilfully & unlawfully destroy or damage property	21 Dec 2009	4 May 2010	NO PUNISH – S 67: Time spent on remand in custody
Final hearing following JJT, from appearance on 14 Jan 2010	12 Sep 2009	3 Aug 2010	NO PUNISH – S 67
Final hearing following JJT, from appearance on 14 Jan 2010	16 Dec 2009	3 Aug 2010	NO PUNISH – S 67
(Att) Stealing from Person of another	10 Dec 2010	26 Jul 2011	DETENTION: 2 Months CONCURRENT FROM 13 Apr 2011
Aggravated Robbery	11 Dec 2010	26 Jul 2011	DETENTION: 15 months CONCURRENT FROM 13 Apr 2011
Aggravated Robbery	12 Feb 2011	26 Jul 2011	DETENTION: 4 Months CONCURRENT FROM 13 Apr 2011
Breach of Bail Undertaking	12 Feb 2011	26 Jul 2011	NO PUNISH – S 67; Time spent on remand in custody
Disorderly behaviour in public	3 Feb 2011	26 Jul 2011	NO PUNISH – S 67; Time spent on remand in custody
Stealing	3 Feb 2011	26 Jul 2011	NO PUNISH – S 67; Time spent on remand in custody
Wilfully & unlawfully destroy or damage property	9 Feb 2011	26 Jul 2011	NO PUNISH – S 67; Time spent on remand in custody
Possess a Prohibited Plant	25 Aug 2010	10 Aug 2011	NO PUNISH – S 67
Possess a Smoking Utensil used for smoking prohibited drug	27 Dec 2011	10 Feb 2012	FINE: $100
Without lawful excuse trespassed on a place	27 Dec 2011	10 Feb 2012	FINE: $100