WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 38
•16 January 2020
WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38 (16 January 2020)
Division:GENERAL DIVISION
File Number: 2019/2771
Re:WGKS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member C.J. Furnell
Date:16 January 2020
Place:Melbourne
The Tribunal affirms the decision under review.
...................[sgd]................................................
Senior Member C.J. Furnell
Catchwords
MIGRATION – Applicant convicted by a final judgment of a particularly serious crime – whether Applicant a danger to the Australian community – nature and extent of risk posed – limited evidence of plans to address root causes of criminality – prospects of rehabilitation contingent on various factors – mitigating factors – Applicant suffers from mild intellectual disability – impact of homelessness and drug dependency – applicability of Direction 75 – decision under review affirmed
Legislation
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 6060 UNTS 267 (entered into force 4 October 1967)
Crimes Act 1958 (Vic)
Drugs Poisons and Controlled Substances Act 1981 (Vic)
Migration Act 1958Intellectually Disabled Persons’ Services Act 1986 (Vic)
Cases
Alcan Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27
Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138; [1999] FCA 938
DOB18 v Minister for Home Affairs [2019] FCAFC 63
EKC19 v Minister for Home Affairs [2019] FCA 1823
Frugtniet v Australian Securities and Investments Commission (2019) 267 ALR 695; [2019] HCA 16
Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225
HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591
LLSY and Minister for Immigration and Citizenship [2011] AATA 334
MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
MVLW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1557
NADB of 2001 v Minister for Immigration and Multicultural Affairs (2002) 126 FCR 453; [2002] FCAFC 326
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123
Sullivan v Civil Aviation Safety Authority (2013) 138 ALD 600; [2013] FCA 1362
SZOQQ v Minister for Immigration and Citizenship (2012) 126 ALD 200; [2012] FCAFC 40
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
WKCG and Minister for Immigration and Citizenship [2009] AATA 512Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 1817
Secondary Materials
Cambridge Dictionary (online)
Collins Dictionary (online)
Direction No. 75 – Migration Act 1958 – Direction under section 499: Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)
Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
Macmillan Dictionary (online)
Oxford English Dictionary (online)REASONS FOR DECISION
Senior Member C.J. Furnell
16 January 2020
On 14 May 2019 the Applicant, WGKS, applied for review of a 7 May 2019 decision to refuse his application for a Protection (Class XA, subclass 866) visa.
The decision was made by a delegate of the Respondent. The delegate was not satisfied that a criterion prescribed by the Migration Act 1958 (the Act) for the grant of the visa was satisfied. As a result of that state of non-satisfaction, the delegate was required to refuse WGKS’ application.[1]
[1] The Act, s65
The criterion which the delegate considered was not satisfied is that set out in s36(1C) of the Act. That section requires a visa applicant to not be a person who the Respondent 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.
It was the community danger aspect of s36(1C) which the delegate considered WGKS did not satisfy. According to the delegate, WGKS, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Consistent with his or her duty to do so under a direction given by the Respondent under s499 of the Act (Direction 75), before considering the s36(1C) criterion, the delegate first undertook an assessment of WGKS’ “…refugee claims with reference to s36(2)(a) [of the Act] and any complementary protection claims with reference to section 36(2)(aa) [of the Act]…”.
Consequent upon that assessment, the delegate concluded that s36(2)(a) of the Act applies to WGKS. More particularly, the delegate concluded that WGKS is a non-citizen in Australia in respect of whom Australia has protection obligations because he is a refugee.
In this proceeding the Respondent has not sought to challenge the delegate’s conclusion concerning WGKS’ status as a refugee. The Respondent simply asks that the Tribunal affirm the decision under review on the basis that WGKS does, indeed, fail to satisfy the s36(1C) criterion.
Unsurprisingly, WGKS also does not challenge the delegate’s conclusion concerning WGKS’ status as a refugee. WGKS has only sought to satisfy the Tribunal that the s36(1C) criterion is satisfied, asking that the Tribunal set aside the decision under review and remit the matter for reconsideration in accordance with a direction that the criterion is satisfied.
ISSUE
Accordingly, as far as the parties are concerned, the question in issue in this proceeding is whether WGKS satisfies the s36(1C) criterion. Indeed, the question which the parties seek to have addressed is even more refined than that. It is not contended that (and the material before me does not suggest that) WGKS is a danger to Australia’s security. Moreover, WGKS accepts that (and the material before me establishes that) he has been convicted by a final judgment of a particularly serious crime.[2] Hence, according to the parties, the question in issue devolves down to whether WGKS is a danger to the Australian community.
[2] Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) dated 7 November 2019 [14]
In these reasons I seek to address that question first. I address later whether that is the only question in issue, recognising that what parties to a proceeding want does not confine the Tribunal’s task.
As for the s36(1C) question, I am satisfied that WGKS, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
The grounds on which I have relied in arriving at this state of satisfaction are, I believe, reasonable. Before outlining those grounds, however, I should say something about the factual and legislative context.
FACTUAL CONTEXT
I will start off with an explanation. At the start of the hearing of this proceeding I made certain directions concerning confidentiality. Amongst other things, I directed that the publication or other disclosure of information tending to reveal the identity of the Applicant or a witness in the proceeding be restricted to certain persons; hence, the reference to the Applicant by a pseudonym, WGKS, and the non-identification of witnesses in this proceeding.
WGKS is a 39 year old national of Cambodia, having been born in a refugee camp on the Thai-Cambodian border.[3]
[3] Exhibit A1 at [1] statutory declaration of WGKS of 5 November 2019 (the November 19 declaration). That there might be some uncertainty concerning his nationality is, however, suggested in the personal details accompanying WGKS’ application for a protection visa where, in response to the question concerning his nationality, the response provided was “Cambodian (I think)” see T11, 219, albeit he appeared to travel to Australia on a Cambodian passport (T11,225)
WGKS’ life in Cambodia has been characterised as one of profound instability.[4] It appears that his father died when he was around four years old and he ceased to live with his mother shortly thereafter.[5] His first memories are of living with his aunt and an abusive uncle. Having tried to run away from his relatives when he was 13, he thereafter lived a somewhat transitory life, residing at times with elements of the Cambodian army and at other times with elements of the Khmer Rouge or in temples.[6] He received no formal education, was subjected to beatings and was exposed to war-related violence.[7]
[4] Applicant’s SFIC [4]
[5] T documents (exhibit R1); T 16, 327 letter of 19 April 2002 from the Victorian Foundation for Survivors of Torture Inc
[6] T20,410
[7] T16, 327
WGKS entered Australia in June 1996.[8] He then attended an English language school for a year, followed by attendance at Springvale Secondary College for part of 1998, albeit that it appears “he was not often in attendance and that he became involved with people who used heroin at this time”.[9]
[9] T7, 172 Department of Health and Human Services (DHHS) letter of 24 August 2017
Around eight months after having arrived in Australia WGKS ceased residing with his mother and started selling drugs.[10] From the age of 17 he has spent the majority of his life in and out of custody.[11]
[10] T10, 198 statutory declaration of WGKS of 23 April 2018 at [17]-[18] (the April 18 declaration)
[11] T7,172
WGKS’ history of offending in Australia is extensive. He has over 150 convictions, spanning 19 years and commencing in 1998 when he was 17. He has appeared before the courts on more than 30 occasions,[12] with multiple sentences of imprisonment.[13]
[12] Applicant’s SFIC [6]
[13] T8, 175-184 National Police Certificate dated 6 December 2017
WGKS’ convictions include:
·numerous property offences such as burglary, theft and handling stolen goods;
·numerous offences concerning the possession and trafficking of illicit drugs, in particular, heroin; and
·a number of offences involving or suggestive of violence or a preparedness to commit acts of violence, such as assault, assault with a weapon and possession of a weapon.[14]
[14] T8, 175-184
WGKS’ most recent convictions were in June 2017 and involved, amongst other things, offences of recklessly causing injury, criminal damage, unlawful assault and contravening a family violence safety notice. On these charges WGKS was sentenced to an aggregate term of imprisonment of 12 months.
The offending to which the June 2017 convictions relate was against a person WGKS characterises as his de facto partner[15] or, in oral evidence, as his fiancée (and who in these reasons I will refer to as DFP). WGKS was said to have punched and choked DFP. The sentencing Magistrate characterised the relevant events in these terms: “…the assaults you subjected her to were serious. You attempted to choke her after putting her in a headlock”.[16]
[15] Supplementary T documents (exhibit R2); ST1, 89-90
[16] T5, 157 Magistrate’s sentencing remarks of 2 June 2017
Injured in the course of assaulting DFP, WGKS was admitted to the Alfred Hospital whereupon he entered another patient’s room, stole the patient’s wallet and, upon his release from hospital, proceeded to purchase over $800 worth of goods using credit cards contained in the wallet.[17]
[17] T5, 144-145
The material before me (and admitted into evidence as Exhibit R2) included a number of Victoria police incident reports. WGKS contended that their content was prejudicial hearsay, a contention presumably directed to a proposition that representations made in them should be afforded little probative value, especially as the persons making the representations had not been called to give evidence. I tend to agree.
What the incident reports do show, however, was that the June 2017 convictions relate to what might be characterised as a domestic disturbance of 10 August 2016[18] and that the domestic disturbance on that date was not a one-off event (as reflected by the fact that, in August 2016, WGKS was the subject of a family violence safety notice).[19]
[18] Exhibit R2, 290
[19] ST2, 294
WGKS’ first custodial sentence was imposed in July 1999, comprising two months detention in a youth training centre. With the exception of the 2009, 2012 and 2016 years, custodial sentences were imposed for convictions in each year from and including 1999 to and including 2017, with the longest such sentence being 18 months (imposed in 2008).
While in prison as a result of his June 2017 convictions, WGKS completed what he characterises as a “Violent Intervention Program”, twice.[20] This did not, however, prevent him from committing further acts of violence when subsequently taken into immigration detention. In August 2018 he was involved in an apparently unprovoked assault of another detainee.[21] In October 2019 he was said to have kicked and punched detention facility staff, in the context of a “recent” episode of psychosis.[22]
[20] The November 19 declaration [4]
[21] Report of 2 October 2019 of a forensic psychiatrist at [68] consistent with the confidentiality direction made in these proceedings, the expert will not be named in these reasons but, instead, will be referred to as Dr C and his report will be referred to as the Psychiatrist’s report
[22] Psychiatrist’s report [71]
WGKS suffers from a mild intellectual disability,[23] a diagnosis of long standing.[24] As a result of his disability, in October 1999 WGKS was found to be eligible for services under Victoria’s Intellectually Disabled Persons’ Services Act 1986.[25]
[23] T 20, 416 DHHS letter 29 June 2018
[24] T15,282 Department of Human Services (DHS) declaration of 25 October 1999
[25] Ibid
More recently, it has been said that WGKS is likely to be suffering from complex post-traumatic stress disorder,[26] and that he has developed a late onset psychotic illness with symptoms consistent with schizophrenia.[27]
[26] Psychiatrist’s report [157]
[27] Psychiatrist’s report [160]
WGKS is currently prescribed methadone to help manage heroin addiction and chronic pain.[28]
[28] The November 19 declaration at [13]
LEGISLATIVE CONTEXT
The jurisdiction of the Tribunal in this proceeding is derived from s500(1)(c) of the Act. Pursuant to that section, the Tribunal may review a decision to refuse to grant a protection visa, being a decision made under s65 of the Act relying on s36(1C).
As I indicated earlier, under s65, the Respondent must refuse to grant a visa if not satisfied that criteria prescribed in the Act for its grant are satisfied. Criteria to be satisfied by a protection visa applicant are set out in s36 of the Act.
As I have already mentioned, the criterion of concern in this proceeding is that outlined in s36(1C)(b). In order for that criterion not to be satisfied:
·WGKS would need to have been convicted by a final judgment of a particularly serious crime; and
·I would need to consider him to be a danger to the Australian community.
The particularly serious crime concept is defined inclusively in s5M of the Act so as to include the commission of a serious Australian offence or a serious foreign offence. A serious Australian offence is, in turn, defined in s5 of the Act so as to capture, amongst other things, an offence against a law in force in Australia, where the offence:
·involves violence against a person or is a serious drug offence; and
·is punishable by imprisonment for a maximum or fixed term of not less than three years.
WGKS has been convicted of, amongst other things:
·recklessly causing injury and assaulting police, each of which is an offence attracting a 5 year maximum term of imprisonment;[29] and
·trafficking heroin, an offence attracting a 15 year maximum term of imprisonment.[30]
[29] Crimes Act 1958 (Vic), s18 and 31
[30] Drugs Poisons and Controlled Substances Act 1981 (Vic), s71AC
Accordingly, WGKS has been convicted by a final judgment of a particularly serious crime, as WGKS accepts.[31]
[31] Applicant’s SFIC [14]
The issue, therefore, is whether WGKS is a danger to the Australian community.
The danger to the community concept
On the state of the authorities, there is some uncertainty as to the test to be applied in assessing whether an individual is a danger to the Australian community.
Whether that concept can be said to apply in any particular case constitutes a question of fact[32] to be answered having regard to all the circumstances of the case.[33]
[32] SZOQQ v Minister for Immigration and Citizenship (2012) 126 ALD 200; [2012] FCAFC 40 (SZOQQ) at [14]-this decision was overturned on appeal but without questioning the validity of the propositions in respect of which I cite it as authority in these reasons
[33] WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (WKCG) at [25]; DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18) at [78]
Considerations of relevance include the extent of the criminal history, the seriousness and nature of the crimes committed, the period over which they took place, the length of sentences imposed and any mitigating or aggravating circumstances. A primary consideration, however, is the risk of recidivism, with the assessment of that risk to be informed by prospects of rehabilitation[34] and certain other considerations, such as prior criminal history.[35]
[34] WKCG at [26]
[35] WKCG at [27]; LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591 (LKQD) at [12]. In DOB18 at [78] Logan J accepted these considerations as being pertinent
The uncertainty to which I referred earlier infects the test to be applied in assessing whether the circumstances of a particular case, taking into account considerations such as those I just outlined, are such as to justify a conclusion that the individual concerned is a danger to the Australian community.
WGKS’ submission as to that test has two aspects and focuses on the primary consideration, the risk of recidivism.
The first aspect is that the concept of danger should receive a restrictive interpretation.
WGKS submits that this is so as the concept applies in the context of an exception to a prohibition on returning refugees to countries in respect of which they have a well-founded fear of persecution.
In aid of that submission, WGKS points to:
·An observation[36] about a provision which s36 of the Act was intended to codify,[37] being an observation referred to in guidelines to which attention is required to be given by Direction 75, a direction by which, prior to the hearing, I was said by both the Respondent[38] and WGKS to be bound.[39] At the hearing, however, each of them appeared to accept I was not bound by Direction 75. I address this issue later in these reasons.
·A decision of His Honour Justice Logan in DOB18.[40] In that decision, His Honour intimated that s36(1C) should be construed narrowly and restrictively because of the potential consequences of excluding someone from the protection afforded by the prohibition in respect of which the section operated as an exception.
[36] The observation was made by Professor Goodwin-Gill concerning the operation of Article 33(2) of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees- United Nations Treaty Series vol. 189, at 137 and vol. 606, at 267 (the Refugee Convention).
[37] Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1236]
[38] Respondent’s Statement of Facts Issues and Contentions of 21 November 2019 (Respondent’s SFIC) [12]
[39] Applicant’s SFIC [17]
[40] DOB18 at [85]
The second aspect of WGKS’ submission is reliant on the validity of the first. It addresses both elements of the recidivism risk, being the extent of the risk and the nature of the risk.
According to WGKS, in order for a person to fall within the exception provided for in s36(1C), there must be a sufficient risk of sufficiently serious offending. As for what constitutes “sufficient”, WGKS contends, in relation to:
·the extent of the risk, that it must be a present and serious risk.
·the nature of the risk, that it must be of offending which, in its nature, is such as to warrant the withholding of protection from being returned to a country in respect of which there is a well-founded fear of persecution; “[a]t a minimum, to be a danger to the community, a refugee must at least be at risk of committing a particularly serious crime (as defined)”.[41]
[41] Applicant’s SFIC [21]
As for the extent of the risk, the suggested need for it to be present and serious echoes a contention considered and rejected in WKCG but accepted in DOB18.
In WKCG the contention so rejected was to the effect that danger must be present and reflect a real probability of harm.[42] In rejecting it, Deputy President Tamberlin (as he then was) stated (with my emphasis) that “…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.”[43]
[42] WKCG at [30]-[31]
[43] WKCG at [31]
In DOB18, however, Logan J stated (at [83] and with my emphasis) that:
…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 than just “risk”.
Unlike DOB18 (which addressed an application for judicial review of a decision under s501BA of the Act), in LKQD, Jackson J was required to address directly the question of what constituted a danger to the Australian community for the purposes of s36(1C). Without directly rejecting what was said in DOB18, His Honour nevertheless appears to have preferred the WKCG formulation. According to His Honour, the fact that s36(1C) may be characterised as an exception does not require “any departure from the explanation of the ordinary meaning of s36(1C) which Deputy President Tamberlin gave in WKCG.”[44] His Honour went on to say, however, that, even if the present and serious risk formulation proposed by Logan J in DOB18 were to be accepted, the test would not rise to a level sufficient to support the contention he was then being urged to accept.
[44] LKQD at [62]
The WKCG and DOB18 formulations appear to differ essentially in relation to the extent of risk required in order to constitute a danger. Logan J requires that the risk be “present and serious”. Tamberlin DP admits of a risk which, in extent, is “real” and one which is inclusive of “a possibility” of harm.
This difference appears to stem from a difference in approach to the construction of s36(1C) adverted to in WGKS’ submission.
The DOB18 formulation requiring a present and serious risk flows from Logan J’s conclusion that the section ought be construed narrowly and restrictively (a conclusion which, as already mentioned, WGKS urges the Tribunal to adopt).
On the other hand, the WKCG formulation requiring a real risk or possibility of harm appears to flow from an approach that seeks to give the words employed in the section their ordinary meaning. DP Tamberlin characterised those words as being plain and simple English.[45] Jackson J in LKQD endorsed that characterisation,[46] going on (as mentioned) to say that the fact that the section operated as an exception did not require a departure from the ordinary meaning of the words used in it. That ordinary meaning approach to construction was also adopted in SZOQQ[47] in relation to the provision which s36(1C) was intended to codify, as well as in what Logan J characterised as the leading United Kingdom authority on the interpretation of Article 33 of the Refugee Convention.[48]
[45] WKCG at [25]
[46] LKQD at [57]
[47] SZOQQ at [20] and [49]
[48] DOB18 at [81] in which reference is made to a decision of the Court of Appeal for England and Wales in (EN) Serbia v Secretary of the State for the Home Department [2010] QB 633 where, at [45], it was said that “I see no need for any gloss on the express words of article 33(2)…”.
Accordingly, the weight of authority appears to support an ordinary meaning approach to the construction of s36(1C), an approach more consistent with the WKCG formulation as to the extent of risk required in order to constitute a danger (a real risk or possibility of harm), as opposed to the DOB18 formulation (a present and serious risk).[49]
[49] See the later discussion outlining various dictionary definition of “danger” in footnote 67
Nevertheless, I do not now need to decide between those formulations and nor do I now need to determine whether I am, as WGKS contends, bound by the approach favoured by Logan J in DOB18.[50] In the case of WGKS, as will be seen later and as contended by the Respondent[51], the extent of risk aspect of the danger test is satisfied even adopting the more arduous, DOB18, formulation.
[50] WGKS contends that what Logan J said concerning the operation of s36(1C) formed part of the ratio of the DOB18 decision (albeit that the three members of the court in that case each delivered a separate judgment and two of them did not address the section). What is the ratio of a decision as opposed to obiter can be difficult to determine see Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 1817 at [24]-[30]
[51] Respondent’s SFIC [59]
As to the nature of the risk, as mentioned, there are two aspects to WGKS’ submission. First, he submits that the risk must be of offending which, in its nature, is sufficiently serious to warrant the withholding of protection from being returned to a country in respect of which there is a well-founded fear of persecution. Second, he submits that the risk must at least be a risk of committing a particularly serious crime.
I reject both aspects of that submission.
WGKS cites no authority in support of either of them.[52]
[52] Applicant’s SFIC [21]
Taking the second aspect first, there is nothing in the text or context of s36(1C) which would limit the danger concept to a risk of committing a particularly serious crime. As Tamberlin DP indicated in WKCG,[53] the question of whether a person has been convicted of a particularly serious offence is one separate and independent from the question of whether the person is a danger.
[53] WKCG at [29]
As to the first aspect of WGKS’ submission, the contention that the risk must be of sufficiently serious offending echoes that considered and rejected in LKQD, to the effect that that the reference in s36(1C) to danger means “very serious” danger.[54]
[54] LKQD at [62]
In urging the Tribunal to accept this aspect of his submission, WGKS disclaims any suggestion that he is seeking to “import a test of proportionality vis a vis the circumstances of a particular case”.[55] (Such a test would see a balancing exercise being undertaken, taking into account “the proportionate risks to a claimant and the risks to the country in which refugee status is sought”.[56] The application of such a test in the circumstances was emphatically rejected in SZOQQ.[57])
[55] Applicant’s SFIC [19]
[56] SZOQQ at [14]
[57] Ibid at [14], [20] and [49]; see also HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [148]-[149]
Despite this disclaimer, however, acceptance of WGKS’ submission would have a proportionality test being imported into s36(1C), albeit not one that would require a consideration of the proportionate risks to the relevant claimant.
On behalf of WGKS it was submitted that it is “…appropriate to construe the word ‘danger’ to incorporate a sense of risk and seriousness of prospective offending proportionate to the potential consequences of removal to persecution”.[58]
[58] Applicant’s SFIC [19]
As proposed by WGKS, what would need to be considered are the proportionate risks to a notional claimant, one who faced the most dire consequences should he or she be returned to the country in respect of which there is a well-founded fear of persecution. Inherent in such an approach is a balancing exercise. That exercise would have the Tribunal balancing the consequences for the Australian community of certain offending against the potential consequences to which the withholding of protection might give rise for a notional refugee.
There is no textual or contextual basis for reading a requirement for a balancing exercise into the section.[59] Indeed, SZOQQ is authority for the proposition that s36(1C) requires no such balancing. [60] In speaking of the terms of the provision which s36(1C) was intended to codify, the Court in SZOQQ said that they “…are unambiguous and dictate a conclusion that no ‘balancing’ or ‘proportionality’ is involved…”,[61] noting that the “…structure and text of the provisions do not permit any balancing exercise”.[62]
[59] See Merkel J’s comments in relation to Article 1F(b) of the Refugee Convention in NADB of 2001 v Minister for Immigration and Multicultural Affairs (2002) 126 FCR 453; [2002] FCAFC 326 at [41]
[60] LKQD at [63]
[61] SZOQQ at [20]
[62] SZOQQ at [49]; see also HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [149]
Moreover, the notional claimant by reference to whom this balancing exercise would need to be conducted is no ordinary claimant. Instead, the notional claimant would, according to WGKS, need to reflect “the most egregious refugee case”. The question begged by a balancing exercise conducted in relation to such a claimant is: what nature of risk to the Australian community warrants risking the life of an acknowledged refugee?
This is not a question which a consideration of s36(1C) requires be addressed. If it were, the section might be rendered applicable only when the nature of the potential offending was such that the risk to the Australian community was worth the loss of a person’s life.
WGKS’ approach to the construction of s36(1C) would, as WGKS contends, have it being applicable only in extreme and genuinely exceptional cases. According to WGKS, support for a construction the result of which is to so limit the section is to be found in certain academic commentary on that aspect of the Refugee Convention which s36(1C) was intended to codify.[63]
[63] See footnote 36
The constructional task is, however, to give effect to the will of the legislature as reflected in the terms employed. It begins with those terms and, as in SZOQQ,[64] it is those terms which must prevail. The terms of s36(1C), whether by themselves or when read in their legislative context, have a clear meaning or, at least, a meaning that does not accord with WGKS’ submission. That meaning is one that cannot be displaced by extrinsic material such as the academic commentary to which WGKS refers,[65] and (given its unambiguity) is one that can be arrived at without resort to such extrinsic material.[66]
[64] SZOQQ at [20]
[65] Alcan Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47
[66] LKQD at [57]
In closing, WGKS submitted that the construction of s36(1C) for which he contends does not entail the adoption of any gloss on its terms. Rather, according to WGKS, matters going to seriousness of risk and seriousness of consequences are inherent in the natural meaning of the word “danger,” with the “touchstone” of seriousness being defined by the context in which the word is employed.
I reject that submission. A construction which would limit the scope of operation of s36(1C) in the way WGKS suggests would reflect an unjustified gloss on the section. In particular, there is nothing in the natural meaning of the word “danger” which would warrant adoption of the construction for which WGKS contends.[67]
[67] Being a situation in which harm, death, damage, or destruction is possible (Macmillan Dictionary (online at 7 January 2020) ‘danger’); the possibility of harm or death to someone (Cambridge Dictionary (online at 7 January 2020) ‘danger’); the possibility that someone may be harmed or killed (Collins Dictionary (online at 7 January 2020) ‘danger’); liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril (Oxford English Dictionary (online at 7 January 2020) ‘danger’)
Moreover, there is in that natural meaning nothing which would have danger being considered to subsist only where the consequences of crystallisation of the relevant risk are of a level of seriousness which, when adjudged by reference to the context, is sufficient.
Further, the interposition of a notional refugee, calling for a consideration of circumstances that would obtain in the context of the “most egregious refugee case”, belies a general acceptance that the question of fact to which the danger concept gives rise is one to be answered in the actual circumstances of the case.
Lastly, while Logan J’s comments appear to take issue with what was said in WKCG concerning the extent of risk, the comments of Tamberlin DP as to the nature of the risk survive unscathed. As to that nature, what is being considered is “harm to one or members (sic) of the Australian community”.[68]
[68] WKCG at [31]
Before passing on to consider whether the danger to the community concept is one that applies to WGKS I should mention that, as no occasion for the exercise of any discretion arises, the legal (or human[69]) consequences for WGKS should his application for review be unsuccessful are not now of direct relevance.[70] This is not to suggest, however, that those consequences have no indirect relevance.
[69] Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225 at [3]
[70] MVLW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1557 at [29]-[33]; see also MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259 at [19]
The factual question I must decide is whether WGKS is a danger to the Australian community. I must be comfortably or reasonably satisfied on reasonable grounds that he is such a danger in order for the s36(1C) exception to apply.
While in coming to that state of satisfaction I am not burdened by the need to conduct any balancing exercise or apply any proportionality test, nevertheless I accept that the strength of any material on which I rely to come to that state of satisfaction ought to be commensurate with the seriousness of the consequences for WGKS of me doing so.[71]
[71] Sullivan v Civil Aviation Safety Authority (2013) 138 ALD 600; [2013] FCA 1362 at [37]; LLSY and Minister for Immigration and Citizenship [2011] AATA 334 at [50], citing Briginshaw v Briginshaw [1938] HCA 34; See the discussion of these cases in MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259 at [141]-[147]; see also NADB of 2001 v Minister for Immigration and Multicultural Affairs (2002) 126 FCR 453; [2002] FCAFC 326 at [41]
Is WGKS a danger to the Australian community?
I have concluded that WGKS is a danger to the Australian community.
Even adopting the more onerous test posited by Logan J in DOB18, I am satisfied that WGKS is a present and serious risk of harm to one or more members of the Australian community.
Nature of the risk posed
In closing submissions, WGKS first addressed the second of the two elements of the “danger” concept he identified, being the nature of the risk he posed.
It was contended that he should not be considered to be a risk of committing a sufficiently serious crime. A risk of offending of a nature consistent with his past offending was said not to constitute a danger to the community for the purposes of s36(1C); it would not be reflective of the section being limited to extreme and genuinely exceptional circumstances.
I disagree.
First, as I have already stated, I do not accept the construction of s36(1C) advanced by WGKS which would have its scope of operation being limited in the way just outlined. Instead, in terms of nature of the risk, what I need to consider is harm to one or more members of the Australian community.
Second, WGKS underplays the nature of his criminal history when suggesting that it “is overwhelmingly dominated by property and dishonesty offences”.[72] Even Dr C’s addition of domestic violence and psychotically-driven assaults fails to do adequate justice to WGKS’ criminal history.[73]
[72] Applicant’s SFIC [23]
[73] Psychiatrist’s report [171]
As I have said, WGKS’ past offending involved numerous property offences such as burglary, theft and handling stolen goods; numerous offences concerning the possession and trafficking of illicit drugs, in particular, heroin, and a number of offences involving or suggestive of violence or a preparedness to commit acts of violence, such as assault, assault with a weapon and possession of a weapon.
The fact that offending of that nature has occurred repeatedly over a long time frame, commencing shortly after WGKS’ arrival in Australia and continuing with some regularity ever since, broken only by periods of incarceration, is strongly suggestive of a future in which WGKS continues to commit offences of the nature to which his past suggests he is inclined.
Those offences are, in their nature, harmful to the Australian community.
As a general rule, the community is harmed when individual property rights are not respected by engaging in crimes such as burglary and theft.
The community is harmed when illicit drugs, especially drugs of addiction such as heroin, are taken and their use promoted, given the well-known adverse health consequences for the individuals concerned (including the possibility of death by overdose), the deleterious effect on the capacity of those individuals to make a positive societal contribution and the broader social and economic costs and consequences of illicit drug use and addiction.
The community (especially the member of the community who is the victim) is harmed when unlawful violence is inflicted on a member of the community, especially when the violence occurs in a domestic context and involves offences of assault and recklessly causing injury.
Moreover, even if the requirement for there to be harm to one or more members of the Australian community were to be qualified by a reference to, say, serious or significant harm (perhaps, consistent with the narrow and restrictive approach to construction adopted in DOB18 albeit, arguably, inconsistent with LKQD’s rejection of the need for there to be “very serious” danger), I am satisfied that offending of the nature I just identified (especially that relating to illicit drugs and violence) would meet the requirement as so qualified.
Indeed, I note the characterisation given by the sentencing Magistrate in 2017 to WGKS’ offences of violence against DFP as being “very serious”.[74]
[74] T5, 57
WGKS contends, however, that the terms of imprisonment to which he was sentenced are indicative of his past crimes being, in nature, insufficiently serious.
I do not agree. While it is true that the sentences imposed on WGKS were, in term, generally significantly less than the maximum allowed, the fact is that the imposition of any term of imprisonment reflects a view that the offence concerned was serious. In this regard, “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”[75] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[76]
[75] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34]
[76] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22]
WGKS has been sentenced to imprisonment on numerous occasions, with the longest single sentence being one of 18 months imposed in late 2008 for a number of offences. As I stated earlier, with the exception of the 2009, 2012 and 2016 years, custodial sentences were imposed on him for convictions in each year from and including 1999 to and including 2017.
Further, the fact that WGKS might have received a term of imprisonment for, say, trafficking heroin which was less than the maximum he could have received suggests that his offence was, in the context of offences of the type committed, not as serious as it could have been. It does not, however, mean that the offence was not serious.
Extent of risk posed
In terms of the other element of the danger “concept” identified by WGKS, being the extent of risk, WGKS submits that he should not be regarded as a present and serious risk of reoffending because:
·He has reasonable prospects of rehabilitation.
·He is not fundamentally inclined towards criminality.
·He has realistic plans in place to address the primary root causes of his past offending.
·Circumstances suggest that the past is not a reliable guide to the future.
I reject that submission.
Rehabilitation prospects
In terms of rehabilitation prospects, it is contended that they are favourable, echoing an opinion of Dr C that “…WGKS’ prospects for rehabilitation are favourable, notwithstanding his substantial criminal history”.[77]
[77] Psychiatrist’s report [166]
That contention does not, however, address the issue.
Prospects of rehabilitation are of relevance to an assessment of risk of reoffending and recidivism being, as I mentioned earlier, the primary consideration in assessing whether an individual is a danger.[78] An assessment of those prospects does not, however, of itself, address the present and serious risk test which WGKS urged I accept, let alone the “a real or significant risk or possibility” test found in WKCG.
[78] WKCG at [26]
Put simply and in context, WGKS could have reasonable or favourable prospects of rehabilitation while at the same time being a serious and present risk of reoffending. Indeed, in expressing his opinion about WGKS’ prospects, Dr C appears to have seen no inconsistency between that opinion and his acceptance that WGKS remains at “some risk” of reoffending.[79]
[79] Psychiatrist’s report [171]; repeated in Dr C’s oral evidence
That WGKS could say no more than his prospects for rehabilitation were reasonable or favourable (as opposed, say, to excellent or even good) says much about what might be inferred about the risk he represents. Indeed, in terms of the extent of risk represented by WGKS, I see this as a less than ringing endorsement. This is especially the case given that the foundation for the contention about WGKS’ rehabilitation prospects (an opinion of Dr C) is itself founded upon or subject to a range of assumptions and qualifications some of which, on the material before me, I am not satisfied are valid or appropriate.
For instance, the single most important factor to WGKS’ prospects of reoffending is said to be him having access to stable housing.[80] According to Dr C in oral evidence, stable housing is absolutely key.
[80] Applicant’s SFIC [30]; Psychiatrist’s report [166] and [170]
I am not satisfied on the material before me, however, that WGKS will be able to obtain and retain access to such housing. The only thing that material establishes is that it is likely that he will receive assistance from the Victorian government in trying to obtain accommodation,[81] and that he is on a waitlist for public housing.[82] No opinion was expressed or material provided on the basis of which I could be satisfied that WGKS would (or would be likely to) obtain access to stable housing on release from detention and thereafter retain such access (despite Dr C defining stable housing in his oral evidence so as to include supported accommodation). Indeed, Dr C expressly refused to opine with respect to WGKS’ access to stable housing.[83]
[81] T9, 185 DHHS letter of 4 April 2018; T7, 173 DHHS letter of 24 August 2017
[82] T9, 185 DHHS letter of 4 April 2018; T20, 416 DHHS letter of 29 June 2018
[83] Psychiatrist’s report [169]
Moreover, even if stable housing were to be made available to WGKS there is reason to doubt its effectiveness in mitigating the risk of reoffending.
WGKS has a long history of support being provided to him,[84] support which, at times, has been both intensive and extensive,[85] something WGKS appears to acknowledge.[86] Much of the support he has received from the Victorian government consequent on his having been assessed in 1999 as suffering from an intellectual disability revolved around “different forms of accommodation models.”[87] The, or at least a, focus of the support he received would appear to have been the provision of accommodations[88] (including supported accommodation such as at Perry House[89]). In this regard:
…over the years…[WGKS] has been supported to access several different accommodation models including transitional staff to support accommodation through the Department, Brosnan use services, Jesuit social services and the Australian community support organisation…, and transitional housing through WAYSS…[90]
[84] Commencing roughly 6 months after WGKS’ arrival in Australia: T15, 294
[85] T15, 289-291 Springvale Community Aid and Advice Bureau letter of 7 November 2002
[86] April 2018 declaration [23]
[87] T20, 416 DHHS letter of 29 June 2018; T7, 171 DHHS letter of 24 August 2017
[88] Psychiatrist’s report [57]
[89] T15, 297
[90] T7, 173 DHHS letter of 24 August 2017
It is of note that WGKS’ extensive and enduring offending occurred despite being provided with support of that nature.
Another assumption or qualification made with respect to WGKS’ prospects of rehabilitation concerns treatment for WGKS’ opioid addiction.
According to Dr C, WGKS would be assisted by ongoing access to such treatment,[91] noting that WGKS’ history suggests that, when his life is not blighted by homelessness and substance misuse, he has shown a willingness to engage with services and treatments offered.[92]
[91] Psychiatrist’s report [163iv]
[92] Psychiatrist’s report [164], as elaborated upon in oral evidence
As Dr C accepted in oral evidence, however, that history only reveals itself in periods of incarceration, at least insofar as the proposition concerning WGKS’ preparedness to engage with services has relevance to an assessment of the risk of reoffending.
Outside the context of incarceration, WGKS’ history of preparedness to engage with treatments concerning his opioid addiction seems to have had little, if any, effect on his offending or, indeed, on his ongoing use of illicit drugs. In this regard, I note that:
·Despite having had “a lot of” substance use counselling when younger,[93] WGKS engaged in substantial offending.
·Despite receiving treatment for his opioid addiction at least from 2013,[94] WGKS engaged in substantial offending after 2013.
·There is nothing in WGKS’ history suggestive of prolonged abstinence from illicit drug use while in the community, despite receiving counselling and treatment for his opioid addiction and despite suggestions from WGKS to the contrary.[95] For instance, in 2013 WGKS was convicted of trafficking heroin and in each of 2014 and 2015 he was convicted of possessing heroin. WGKS appears to have continued to use illicit drugs up to a time shortly before his most recent period of incarceration.[96] Indeed, prior to his most recent arrest, WGKS was apparently injecting heroin several times a week while concurrently being in receipt of prescribed methadone.[97]
[93] Psychiatrist’s report [89]; see also references to drug and alcohol counselling in letter of 3 December 2002 from Victorian Foundation for The Survivors of Torture Inc (T15, 294); and letter from Springvale Community Aid and Advice Bureau of 7 November 2002 (T15, 288)
[94] T10, 199 The April 18 declaration [25]
[95] ST1, 94 Personal Circumstances Form dated 27 August 2017 where WGKS states that he had not used drugs for 5 years; November 2019 declaration at [8] where WGKS states that he has been “clean for almost 4 years”
[96] Psychiatrist’s report [77] and [85] in which reference is made to a heroin overdose in 2016 and to methamphetamine usage in 2016.
[97] Psychiatrist’s report [83]
WGKS currently expresses a desire to cease the use of illicit drugs.[98] He has, however, previously expressed such a desire[99] with little apparent effect.
[98] Psychiatrist’s report [33]
[99] T15, 299 Perry House letter of 31 January 2003
As I indicated earlier, Dr C included domestic violence as a category of prospective offending in relation to WGKS. In terms of the extent of risk that WGKS would again engage in that category of offending, all Dr C said was that he was confident that WGKS would be able to obtain access to family violence services. While WGKS may, as he says, be willing to engage with such services,[100] his doing so will not necessarily be successful. Indeed, as to whether engagement with services of that nature would be likely to result in WGKS not committing any further acts of domestic violence, Dr C was not able to express an opinion (and no material was before me on the basis of which I could be satisfied that the risk of reoffending of that nature would thereby become sufficiently remote). In stating that the position in relation to domestic violence was “clouded”, Dr C appeared to accept that his opinion concerning the prospects of rehabilitation was somewhat qualified with respect to that category of offending.
[100] November 19 declaration at [16]
Dr C opined that, if further offending is to be avoided, WGKS will require a substantial level of support, both clinical and social.[101]
[101] Psychiatrist’s report [173]
While Dr C was content to opine that it was more likely than not that clinical services would be made available to WGKS,[102] no opinion was expressed or material provided on the basis of which I could be satisfied that WGKS’ social support needs would be addressed.
[102] Psychiatrist’s report [169]
In this regard, Dr C seems to have considered that WGKS’ rehabilitation was contingent on WGKS being able to both obtain prosocial companionship and avoid his antisocial and/or drug-using peers. Dr C regarded avoidance of such peers as essential[103] and, in oral evidence, expressed the view that it would be very important for WGKS to have access to regular prosocial structured activities during the day. WGKS has suggested he is keen to avoid his peers,[104] something which, in oral evidence, he suggested would need to be absolute in the sense that none of his associates would be of help in him avoiding offending.
[103] Psychiatrist’s report [174]
[104] November 19 declaration [12]
I am not satisfied that this contingency concerning WGKS’ social needs would, or would be likely to be, met.
In terms of the likelihood of WGKS being successful in avoiding his antisocial/drug-taking peers, I note that WGKS has failed to give effect to previous expressions of intent to avoid such persons.[105]
[105] T15, 299 Perry House letter of 31 January 2003 in which it is stated that WGKS has assured the author that he is not having contact with old friends or going to Springvale
In terms of obtaining prosocial companionship, it is entirely unclear how this is to be achieved. DFP provided no material in support of WGKS’ application. In any event, while DFP may well have ceased taking illicit drugs,[106] WGKS does not intend to reside with her on his release from detention[107] which, in oral evidence, Dr C characterised as a good thing. As for family, while several members of WGKS’ immediate family reside in Australia, the prospect of them being the source of prosocial companionship seems remote. WGKS has been out of contact with his family for some time (despite asserting in August 2017 that he sees members of his family regularly[108]), no family member provided any material in support of his application and it would seem clear that he is, at least, estranged from his mother.[109]
[106] November 19 declaration [11]
[107] Psychiatrist’s report [130]
[108] ST1, 93 Personal Circumstances Form of 23 August 2017
[109] T7, 171 DHHS letter of 24 August 2017
In oral evidence Dr C suggested that statutory bodies such as the National Disability Insurance Agency (NDIA) could provide social support. It is, however, difficult to see how (and no material before me offered any explanation as to how) the receipt of services from such a body would give rise to the link with prosocial peers which Dr C suggested in his report was required.
Dr C suggested that training or employment might be of assistance in meeting WGKS’ social needs. I address this suggestion later in the context of commenting on what was said to be WGKS’ realistic plans to address the root causes of his offending.
Not fundamentally inclined to criminality?
In terms of not being fundamentally inclined towards criminality, it is said that WGKS is not so inclined given his low scores in two of the domains employed in an offender classification scale which Dr C used in his assessment of WGKS.
In particular, reliance was placed on the results of an assessment conducted using a tool the object of which is to identify case management needs in order to reduce the risk of reoffending.
One result of that assessment was that WGKS was said not to “score highly on pro-criminal attitudes or antisocial traits”.[110] The contention that WGKS is not fundamentally inclined towards criminality is based on that result.
[110] Psychiatrist’s report [167]
WGKS’ history poses some difficulty in accepting this contention, at least insofar as it is intended to infer that as a result of his attitudes and traits WGKS is unlikely to offend in the future. Despite the suggested absence of any fundamental inclination towards criminality reflected in those attitudes and traits, WGKS nevertheless managed to accrue a significant and extensive criminal history. As the absence of that inclination has not prevented WGKS from offending in the past, it is not clear why it would do so in the future.
Moreover, other results derived from Dr C’s application of the case management tool in the circumstances are more problematic from WGKS’ perspective. In particular, WGKS was assessed as having a level of needs categorised as high, the second highest category of needs in the scale of risk needs used in connection with the case management tool. While this does not, according to Dr C, reflect a conclusion that WGKS represents a high risk of reoffending, it does indicate that WGKS shares a number of attributes that have been found to relate to an increased risk of reoffending.[111] It was in the context of discussing these results that Dr C acknowledged, in oral evidence, that it was appropriate to be moderately concerned about WGKS and that the likelihood of him being a recidivist was not low.
[111] Psychiatrist’s report [142] and [145]
Plans to address root causes of offending?
In terms of WGKS having realistic plans in place to address the primary root causes of his past offending, it is contended that his history of offending ought be given less significance than it otherwise might be given if I can be satisfied that he can address those causes. In essence, if WGKS can address those causes, I should (so WGKS contends) disregard (at least to some extent) inferences clearly available to be drawn from WGKS’ extensive criminal history.
I do not accept this contention.
The issue is not whether something can occur. If I am to treat WGKS’ history as an unreliable (or less relevant) guide to his future conduct because of something that might occur, I need to be satisfied of two things. First, I need to be satisfied that the thing will occur or is likely to occur. Second, I need to be satisfied that its occurrence would adversely affect the reliability (or relevance) of WGKS’ history as a guide to the future.
In this regard, according to WGKS, the root causes of his criminality comprise his social dislocation and substance misuse[112] or, as put in closing and in the Applicant’s SFIC, his circumstances of homelessness and heroin addiction.
[112] Psychiatrist’s report [174]
On the material before me, I am not satisfied that there are plans in place that will result in, or be likely to result in, these identified causes of offending being addressed.
As for homelessness, and as previously indicated, I am not satisfied that he would (or would be likely to), on release from detention, be able to obtain stable housing and thereafter retain that housing. Moreover, again as previously indicated, given the nature of support in terms of accommodation provided to WGKS in the past, there is reason to doubt that the provision of stable housing would materially impact on his risk of reoffending.
As for WGKS’ heroin addiction, I am not satisfied that he would (or would be likely to) remain free of illicit drug use after his release from detention.
It may be, as Dr C suggests, that WGKS has been “substance free” for over three years but this has occurred in the context of WGKS’ incarceration.[113] Previous, lengthy, periods of incarceration have not prevented the subsequent and ongoing use of illicit drugs.
[113] Ibid
It also may be, as was contended in closing, that WGKS has demonstrated a commitment to the methadone program. As previously indicated, however, a history of service provision involving counselling and the supply of prescription medication (such as methadone) did not prevent WGKS’ ongoing use of illicit drugs while free in the community. In any event, there was no material before me which would have enabled some assessment to be made of the likelihood of an addict being treated with methadone ceasing to use, and not returning to the use of, illicit drugs (and Dr C was unable to express an opinion on this issue).
Lastly, WGKS’ expressed intention to abstain from the use of illicit drugs[114] reflects previous, but unfulfilled, expressions of intention made by him.[115]
[114] November 19 declaration [13]
[115] See, for example Perry House letter of 31 January 2003 in which it is suggested that WGKS has expressed a desire not to use drugs again (T16, 333)
As for social dislocation, again, on the material before me, I am not satisfied that WGKS would (or would be likely to) address this issue. The contention made on his behalf appears to be that the issue would be addressed by WGKS, on release from detention, first, developing and undertaking prosocial networks and activities (involving employment or vocational training, or both[116], with particular reference to further training in welding) and, second, avoiding his drug-using peers.[117]
[116] November 19 declaration [10]
[117] November 19 declaration [12]
As for avoiding his drug-using peers, as I noted earlier, on the material before me I am not able to be satisfied that this will occur or be likely to occur, especially as WGKS failed to give effect to previous expressions of intent to avoid such persons.
As for vocational training and employment, WGKS has expressed his willingness to engage with the relevant Victorian government department to “get back into work and study”,[118] noting that WGKS’ oral evidence was to the effect that he wished to complete a welding course on release from detention.
[118] November 19 declaration [10]
While I do not doubt that this is, indeed, something which WGKS wishes to do, I have little confidence that he would, in fact, do it or that, should he do it, it would result in being gainfully employed and ceasing to offend.
First, WGKS appears to suggest that him engaging in work or study is subject to a contingency, being his receipt of third party services; “before I can get into work or study, I need the help of professionals for my mental health, housing, things like that”.[119]
[119] November 19 declaration [15]
Second, WGKS’ history reflects little by way of gainful employment. WGKS contends that he is most keen to engage in honest work; “all I want to do is work”.[120] His desire to work, however, has not been reflected in his employment career. No material in support of WGKS’ application was provided by past employers. This is not surprising. In his oral evidence, WGKS conceded that since 2011 he has been employed for a period, in aggregate, of around five to six months.[121]
[120] Statutory declaration of 29 June 2018 (the June 18 declaration) [30]
[121] T11, 243, 244
Third, previous expressions of interest in undertaking training activities have not proved fruitful in terms of actually completing any such activities or gaining long term employment based on such training.[122]
[122] T11, 243, 244
In material apparently provided in opposition to a proposal in or around 2002 to cancel WGKS’ visa, it was said that WGKS had raised “…concrete and positive suggestions about vocational and educational activities he could undertake.”[123] He was said to be interested in improving his vocational and educational opportunities,[124] noting his acceptance into a 12 month full time motor mechanics course.[125] It would appear that WGKS never undertook the motor mechanics course in which he was apparently enrolled.[126]
[123] T15, 294 Victorian Foundation for the Survivors of Torture Inc letter of 3 December 2002
[124] T15, 297 DHS letter of 29 January 2003
[125] Ibid; T15, 298 letter of 31 January 2003 from Perry House
[126] T11, 244
In response to this earlier threat to remove him from Australia, the only example of a step which WGKS said he had undertaken to ensure he would not reoffend was the undertaking of a particular course, being a jewellery course.[127] That course was undertaken over “a few months” in 2002.[128] After 2002, when the immediate threat was removed, WGKS went on to engage in frequent offending without ever being employed as a jeweller.[129]
[127] ST1, 146
[128] T11, 244
[129] T11, 243, 244
As for WGKS’ expressed desire to complete a welding course, I note that he apparently undertook training in such a course over three months in 2012, being a course provided by the Kangan Institute[130] while he was in prison. In response to a question as to why he did not complete the course, WGKS’ response was that he was then released from prison. This is suggestive of little dedication to the course outside an institutional context.
[130] T11, 244
Circumstances suggest that the past is not a reliable guide to the future?
In considering WGKS’ submissions and contentions I have made much of WGKS’ history.
WGKS has had a long and extensive history of offending. This history suggests that there is a more than present and serious risk of recidivism.
WGKS submits, however, that his history is not a reliable guide to the recidivism risk he represents because circumstances now differ from those that applied in the past.
In the context of an extensive, lengthy, history of offending, the question that is posed by a change in circumstances is whether it is such as to justify the Tribunal being satisfied that the person is not the danger that the person’s history otherwise suggests that he or she is. First, I need to be satisfied that the change has occurred or is likely to occur. Second, I need to be satisfied that the effect (or likely effect) of its occurrence is to extinguish or reduce the risk of reoffending to a level such that the person no longer constitutes a danger.
One change in circumstances identified on behalf of WGKS revolves around the recent diagnosis of a late onset psychotic illness. According to Dr C, this makes it more likely that WGKS will be able to access a range of services and supports. Although Dr C did not consider himself to be an expert on the National Disability Insurance Scheme operated by the NDIA, he seemed confident that, with that recent diagnosis, WGKS would be eligible to obtain supports under the scheme. Indeed, it seems that WGKS would receive some assistance in being able to access that scheme.[131] In addition to accessing that scheme, it is likely that WGKS would be eligible for case management by his local public mental health service, as well as support from mental health services that assist refugees with histories of trauma.[132]
[131] T9,185 DHHS letter of 4 April 2018; T20, 416 DHHS letter of 29 June 2018
[132] Psychiatrist’s report [163]
I accept, as a general proposition, that an expansion in service availability may ameliorate the recidivism risk. That amelioration would seem, however, to be (at least to some extent) offset by an enlargement of that risk as a result of WGKS now suffering a mental illness. This enlargement is reflected by Dr C identifying psychotically-driven assaults as a form of offending in which WGKS might potentially engage. It is also reflected in assaults committed by WGKS while in detention on staff and on another detainee.[133]
[133] November 19 declaration at [9] and [14]; Psychiatrist’s report at [68] and [71]
On the material before me, I am not satisfied that any amelioration in risk achieved by the expansion in service availability will materially exceed the risk enlargement resulting from WGKS’ mental illness.
Another change in circumstances identified by WGKS concerns his age. According to Dr C, with age comes a level of maturation that facilitates the making of meaningful change. Dr C opined that, generally, in his experience, the older a person is the less likely he or she is to offend.
I am not satisfied, however, that WGKS getting older will make a sufficiently material difference such that I can conclude that he is not the present and serious risk of reoffending that his history suggests he is. Even if I were to conclude that Dr C’s experience might properly be transposed into a proposition having general validity (despite the absence of any material before me in support of such a conclusion), it is a proposition that would appear to hold little water in the case of WGKS. On the material before me, his offending has not slowed down with age; it may even have accelerated.[134] In particular, WGKS’ history does not reveal any decline in his rate of offending after he reached the age when one might have expected signs of such a decline, given Dr C’s evidence to the effect that the risk of offending is generally higher for persons between the ages of 15 and 30.
[134] T8 National Police Certificate dated 6 December 2017
Lastly, WGKS identified as a change in his circumstances the fact that, as a result of his having for the first time been placed in immigration detention (and having spent a significant period of time in detention), he now fully appreciated the risk of being removed from Australia that his offending engendered. On his behalf it was said that it is only now that he truly understands the seriousness of his predicament, in terms of the risk of removal from Australia.[135]
[135] See also June 18 declaration T20, 410 at [3]
While I have no doubt that being in immigration detention brings home the seriousness of the risk of removal from Australia I reject the suggestion that WGKS had not previously been aware of the risk he ran by continuing to offend.
Over the years, WGKS has received numerous warnings about the risk. For example:
·In August 2002 WGKS was given, by hand, a notice to the effect that his sole authority to remain in Australia, his visa, was liable to cancellation.[136]
·In June 2005 a similar notice was given to WGKS, a notice which included a statement, in bold, that “A decision to cancel your visa would result in your permanent removal from Australia”.[137]
·In June 2006 WGKS was provided with a warning in writing that outlined a comment about him which stated that:
…unless he seeks help to support him and better manage his condition, he will continue to offend and eventually the question of his continued right to live in Australia will need to be reviewed.[138]
·In February 2008 WGKS was provided a warning in writing (in bold) that “…any further criminal convictions…could result in the consideration of the cancellation of your visa…” and that “…the consequences of visa cancellation… include removal…from Australia…”[139]
·In March 2011 WGKS was again threatened with visa cancellation in a letter in which it was expressly stated that “Subject to very limited exceptions, if your visa is cancelled, you will not be able to remain in Australia…”[140]
[136] ST1, 116
[137] ST1, 119
[138] ST1, 122
[139] ST1, 125
[140] ST1, 129
In and around 2002 at least one extensive interview with WGKS was conducted in the context of a consideration as to whether his visa ought be cancelled[141] and either he organised or there was organised on his behalf a variety of submissions from interested parties in support of him retaining his visa.[142]
[141] ST1, 139
[142] T15, 288, 293 and 298 letter from Springvale Community Aid and Advice Bureau of 7 November 2002, letter from Victorian Foundation for the Survivors of Torture Inc of 3 December 2002 and letter from Perry House of 31 January 2003
In the context of the warnings given to him and the organised efforts (at least in or around 2002) made to retain his visa, I reject WGKS’ oral evidence to the effect that he had, prior to his recent detention, believed the warnings given to him were sent to him by mistake and that he had a permanent right to remain in Australia.
Despite being warned repeatedly that his continued offending placed him at risk of removal from Australia, WGKS would appear to have chosen either to run the risk or ignore it. Having made such a choice in the past he may well make it again in the future, were he now to be released from detention back into the community. Indeed, were this to occur, it might well be considered by WGKS to validate the choice he apparently made.
Any factors in mitigation?
As I stated earlier, in assessing whether WGKS is a danger to the Australian community, the primary consideration concerns the risk of recidivism; the risk of re-offending and the likelihood of relapsing into crime.
Other, to an extent related, considerations include the extent of the criminal history, the criminal record as a whole, the seriousness and nature of the crimes committed, the period over which they took place, the length of the sentences imposed and any mitigating or aggravating circumstances.
It is to the last of these considerations that I now turn.
In terms of factors that might be considered to be mitigating, I refer to WGKS’ early, clearly hellish, life in Cambodia, his mild intellectual disability and his recent diagnosis of mental illness, all of which I have previously outlined. These matters might be considered in mitigation were WGKS’ moral culpability being assessed. That does not, however, constitute the task at hand. While possibly making WGKS’ past conduct more understandable, the first two factors say little by way of amelioration of any danger to the Australian community which WGKS represents.[143]
[143] See HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [126] as to the issue of whether a physiological condition which may explain behaviour can be considered to constitute mitigation where what is being assessed is the possibility or even probability of re-offending
The last factor exacerbates that danger according to Dr C’s oral evidence, albeit an exacerbation that can be addressed by medication and is likely to be so addressed, given Dr C’s view that WGKS is accepting of the need for treatment.
While not a submission made on his behalf, it might be suggested that WGKS’ expressed desire to establish a relationship with his son[144] mitigates the risk of his reoffending.[145] I reject any such suggestion. Apart from somewhat self-serving statements made by WGKS as to that desire,[146] there was nothing in the material before me that suggests that, when he had an opportunity to do so, WGKS took any action in order to give effect to that desire. WGKS did not know where his son lives (although he believed him to be in Sydney)[147] and had not seen him since 2008.[148] Indeed, it would appear that WGKS doubts his paternity of the child in question.[149]
[144] ST1, 94 Personal Circumstances Form dated 23 August 2017 in which WGKS states he had not used drugs for 5 years as he wanted a relationship with his son
[145] See LKQD at [27]
[146] ST1, 92 Personal Circumstances Form of 23 August 2017
[147] Psychologist’s report [113]
[148] ST1, 92 Personal Circumstances Form of 23 August 2017
[149] T10,199 April 18 declaration at [24]
Bound by Direction 75?
I propose now to consider whether I am bound by Direction 75,[150] a direction issued under s499 of the Act and one with which I must comply if it is given to the Tribunal and if it concerns the performance of functions or the exercise of powers I am, in this proceeding, performing and exercising.
[150] Direction No 75 – Migration Act 1958 – Direction under section 499: Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) (Direction 75)
If I am required to now comply with the direction, it would have been necessary for me to have first assessed WGKS’ “…refugee claims with reference to s 36(2)(a) … of the Act ‘before considering any character or security concerns’”.[151]
[151] RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123 at [77]
I have not done this. Indeed, the parties requested that I not do so, noting that neither of them sought to take issue with WGKS’ refugee claims or that aspect of the decision under review which dealt with those claims.
In circumstances such as these it has been concluded that Direction 75 “has no application in the Tribunal’s review”.[152]
[152] Ibid at [78]; HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [153]
I endorse this conclusion, albeit that I do not consider it to be one free of doubt.
The direction is expressed to bind delegates and, hence, in its terms, is not given to the Tribunal (unlike, for instance, Direction 79, which, in its terms, is given expressly to the Tribunal). As such and as it is not expressed to have been given to the Tribunal, it would appear to have been intended that the direction not bind the Tribunal. In reliance on this apparent intention, in the recent decision of EKC19,[153] Davies J concluded that the direction did not bind the Tribunal. (I do note, however, that a proposition would not seem to have been put to Her Honour to the effect that the direction binds the Tribunal as it is bound by the same constraints as bind the maker of the decision the subject of Tribunal review. The High Court decision in Frugtniet[154] might be said to support such a proposition.[155])
[153] EKC19 v Minister for Home Affairs [2019] FCA 1823 at [36]
[154] Frugtniet v Australian Securities and Investments Commission (2019) 267 ALR 695; [2019] HCA 16 (Frugtniet)
[155] Frugtniet at [14]-[15] per Kiefel CJ, Keane and Nettle JJ it was said that the Tribunal is “…not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision...” See also Frugtniet at [51] per Bell, Gageler, Gordon and Edelman JJ it was said that the Tribunal “…exercises the same power or powers as the primary decision-maker, subject to the same constraints.”
Moreover, limiting the Tribunal’s review to a consideration of the application of s36(1C), without the need to reconsider WGKS’ refugee claims, is consistent with the recent decision of Rares J in CPJ16.[156]
[156] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 (CPJ16)
In that decision His Honour considered a refusal to grant a visa because of a failure to satisfy the Respondent’s delegate that the applicant passed the character test provided for in the Act. The delegate relied on a particular provision of the Act. The Tribunal on review only considered that provision and refused an application to include in the review the issue of whether the applicant did not pass the character test under another provision of the Act. According to His Honour:
… the Tribunal’s task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate’s findings and reasons, so that the character of the review can be shaped by that consideration.[157]
[157] CPJ16 at [66]
As shaped by the decision the subject of review in this proceeding, the only issue now in contention concerns s36(1C). As such, it would, arguably, be inconsistent with the Tribunal’s task on review for me to now go beyond that issue. (I do note, however, that limiting the Tribunal’s review by reference to the grounds relied upon by the relevant decision-maker in making his or her decision might be said to ignore authority for the proposition that the Tribunal’s role is to review decisions, not reasons for decisions.[158])
[158] Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138; [1999] FCA 938 at [25]; Re Tait [2003] AATA 413
CONCLUSION
I find that WGKS has been convicted by a final judgment of a particularly serious crime and he is a danger to the Australian community. Accordingly, he does not satisfy the criterion in s36(1C) of the Act.
Therefore, the decision the subject of review is affirmed.
181. I certify that the preceding 180 (one hundred and eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chris Furnell
..................[sgd]............................
Associate
Dated: 16 January 2020
Dates of hearing:
4 & 12 December 2019
Advocate for the Applicant:
Solicitors for the Applicant:
Andrew White
Refugee Legal
Advocate for the Respondent:
Tal Aviram
Solicitors for the Respondent:
Clayton Utz
7
23
0