WKCG v Minister for Immigration and Citizenship
[2009] AATA 512
•6 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 512
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/0280
GENERAL ADMINISTRATIVE DIVISION )
ReWKCG
Applicant
AndMINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
TribunalThe Hon B Tamberlin QC, Deputy President
Date6 July 2009
PlaceSydney
DecisionThe decision under review is set aside on the basis that the applicant does not come within the exception provided for in Article 33(2) of the Convention Relating to the Status of Refugees.
..............[sgd]................................
The Hon B Tamberlin QC
Deputy President
CATCHWORDS
MIGRATION – Protection Visa application – whether applicant comes within the exception provided for in Article 33(2) of the Convention Relating to the Status of Refugees in that he constitutes a danger to the community of Australia having been convicted of two particularly crimes – applicant does not constitute a danger – decision under review is set aside.
Migration Act 1958 (Cth) (the Act): ss 36
Convention Relating to the Status of Refugees (the Refugee Convention): Article/s 33
Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
REASONS FOR DECISION
6 July 2009
Deputy President B Tamberlin QC
decision under review
1. This is an application for review of a decision dated 8 January 2009 by the delegate of the Minister who was not satisfied that the applicant was owed protection obligations for the purposes of s 36 of the Migration Act 1958 (Cth) (the Act). The delegate decided that the applicant came within the terms of Article 33(2) of the Convention Relating to the Status of Refugees (the Refugee Convention) and that she was not required to consider other criteria.
relevant law
2. Section 36(2) of the Act relevantly provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b)
…
3. Article 33 of the Refugee Convention is as follow:
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.
4. Article 33(2) of the Refugee Convention is an exception to the prohibition on “refoulement” of a refugee where the person, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
5. Section 91U(2) of the Act, defines a “particularly serious crime” to include the commission of an offence, which is a serious drug offence or which involves violence against a person or which involves serious damage to property, and the offence is punishable by imprisonment for a maximum term of not less than three years.
6. In the present case it is common ground that the applicant has been convicted on two separate occasions of offences, each of which comes within the description of a “particularly serious crime.”
issues
7. The issue for the Tribunal is whether the applicant comes within the exception provided for in Article 33(2) of the Convention Relating to the Status of Refugees, in that he constitutes a danger to the community of Australia having been convicted of two particularly serious crimes.
8. The context in which this issue arises is set out below.
background
9. The Applicant was born in 1961 and lived in Lebanon prior to his arrival in Australia in 1987.
10. On 16 April 1989, he was charged with murder arising from a heated discussion with the victim in the public bar of a hotel.. On 28 March 1991, he was convicted of manslaughter and sentenced to imprisonment for a period of five years minimum with an additional term of one year and eight months. This was reduced on appeal to a minimum of three years imprisonment with an additional term of three years and eight months and he was released on parole in 1994.
11. In mid-1993, the Applicant was given a Criminal Deportation Warning, but no action was taken to deport him. He bought a small business, upon his release, and lived with his sister. On 1 September 1994 he was granted a Transitional (Permanent) Visa.
12. On 8 September 2001, he was charged with supplying prohibited drugs and offering to supply a prohibited drug in circumstances where he was found to be in possession of and offered to supply cocaine and other drugs including cannabis. On 19 December 2003, he was convicted and sentenced to a term of six years imprisonment with a non-parole period of two years and three months. He was released on parole on 6 March 2006.
13. He had been given a notice of intention to cancel his visa on the 19 January 2006. On 18 October 2006 his visa was cancelled under section 501 of the Act and he was detained at Villawood Immigration Detention Centre on 23 October 2006. There were then a series of applications, appeals and reconsiderations under the Act as a result of which the applicant was released from detention on 21 July 2008. However, as a consequence of legislative amendments to the Act, which validated the decision to cancel his visa, he was re-detained at Villawood.
14. On 10 October 2008, the Refugee Review Tribunal found that he was a “refugee” within the meaning of the Refugee Convention and that he satisfied the criterion for a protection visa pursuant to section 36(2)(a) of the Act. That Tribunal accepted that the applicant held a well-founded fear of being persecuted for reasons of his political opinion if he returned to Lebanon then or in the reasonably foreseeable future.
15. After his re-detention on 21 July 2008 he lodged an application for a protection visa. He was released from detention for a period of approximately three months in July 2008 and voluntarily returned to the detention centre following the legislative amendments, which had the effect of validating a decision to cancel his transitional visa. On 8 January 2009, he was notified of a decision by the delegate that his application for a protection visa was refused. On 21 January 2009, he lodged the present application for review of the delegate’s decision.
evidence before the tribunal
16. The documents before the tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), together with a number of witness statements filed on behalf of the applicant and several reports from psychologists. The applicant gave oral evidence in person along with Mr C WKCG, Ms M WKCG, Mr Peter Bartol and Mr T WKCG.
The Applicant’s evidence
17. At the hearing the applicant adopted his statement of 15 April 2009, in which he stated that on 28 March 1991, he had pleaded guilty to manslaughter. He outlined the events leading up to this offence and stated that he regretted the use of the knife and that “The incidence changed my life.” He went on to explain his 2003 conviction for the supply and offer of supply of prohibited drugs. He had engaged in these offences to support both gambling and drug addictions.
18. Since his release from prison in March 2006, he had complied with all parole conditions and ceased drinking, gambling and using illegal drugs. He is remorseful for his past criminal behaviour and has vigorously undertaken a number of rehabilitation courses over the years. In the period between December 2003 and January 2006 whilst in gaol the Applicant undertook a series of programs relating to matters such as excessive consumption of alcohol, anger management and drug awareness and prevention. He obtained a number of certificates testifying to these attendances.
19. He has a nine year old daughter who is an Australian citizen. Contact with his daughter since his incarceration in 2001 has been difficult. While she did visit him for a time, he has since lost contact with her, but maintains hope for a future relationship with her.
20. He has a large number of siblings and extended family members living in Australia. His family support system is strong and he maintains that he has good prospects for future employment within Australia.
Applicant’s supporting Witnesses
21. A number of supporting statements were filed on behalf of the applicant and four witnesses gave oral evidence to the Tribunal. Generally, the evidence contained in these statements and in the oral evidence attested to the overwhelming family support that is available to the applicant, the remorse that he has shown for his past criminal conduct and the positive steps he has taken to change his life.
Psychological Evidence
22. Ms Emma Collins, clinical and forensic psychologist, conducted a ninety minute consultation with the applicant on 9 March 2009 at Villawood Detention Centre. She also had a brief telephone interview with the applicant’s sister. She prepared a report on 11 March 2009 and an addendum to that report on 4 May 2009. After outlining the applicant’s background, criminal conduct, medical and substance abuse history, Ms Collins concluded:
His recidivism risk is low-moderate, and will remain low if he is able to maintain a drug (and gambling) free state. [the applicant] presents as genuinely motivated to maintain such abstinence, which will be assisted with ongoing rehabilitation and family support (Report dated 11 March 2009, p 6).
23. Mr Stephen Alnutt, senior consultant forensic psychiatrist, also conducted a clinical evaluation of the Applicant at Villawood Detention Centre on 11 May 2008. His report dated 3 June 2009, prepared at the request of the respondent, observed that his vulnerability to certain risk factors suggests a “moderate vulnerability to aggression in the long term” (at p12), however, he currently “has a relatively good internal capacity to manage this vulnerability.” He concluded that:
…the Applicant falls into a group of individuals who would be regarded as manifesting a low risk of future violent recidivism if he pursues gainful employment, supporting relationships, abstinence from substances, avoids criminal associates, and avoids substance related environments; and moderate risk group if he fails in these requirements (at p12).
24. Both these reports note that the applicant’s strengths include, among other things, his history of reasonable employment, his supportive interpersonal relationships, his long periods of abstinence from substance abuse, his motivation in pursuing treatment and rehabilitation for his substance and gambling addictions and that his prospects of gaining stable employment and accommodation were good.
legal principles
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 Article 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 v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 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.
…
28. Counsel for the applicant submits that as a matter of construction of Article 33(2), it is necessary to show that there is a causal connection between the relevant crime of which he has been convicted, in order to decide whether the refugee can be said to constitute “a danger”. Conversely, the respondent submits that the correct interpretation of the wording does not include the causal relationship for which the applicant argues.
29. As a matter of interpretation, in my view, the reference to the words “having been convicted” operate to limit the class of persons on whom the provision operates and that the question whether a person “constitutes a danger” is a separate additional matter to be independently established. The reference to “having been convicted” is analogous to a prerequisite to the exercise of the power independent of the other criterion. This conclusion is supported by extrinsic material including the Second Reading speech and the relevant Explanatory Memorandum. Therefore, once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community. Of course, the nature and circumstances of the conviction or convictions will generally be highly relevant to the question whether the person can be described as being a “danger”. However, it is not conclusive. It is necessary to look at the person's conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions. In other words, if a person is convicted for a crime of violence and it later transpires that he or she may constitute a danger to the community in another area, such as drug trafficking, such a person may come within the exception provided for in the Article. Accordingly, I agree with the submission made by the respondent Minister and reject the submission of the applicant that the particular offences for which the person has been convicted must always somehow be causally linked to the type of danger to the community.
30. Counsel for the applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a “real probability” of harm being caused to the community.
31. The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.”
Reasoning
32. The applicant has been convicted of two particularly serious crimes. The first, the manslaughter committed in 1989, involved extreme violence, albeit under strong provocation. The circumstances were that at that time, some 20 years ago, the applicant was under extreme provocation, which together with his guilty plea and other circumstances, led to his conviction for the lesser charge of manslaughter. I have carefully considered the sentencing remarks of Abadee J, which spell out all the relevant circumstances and the mitigating factors.
33. The evidence before the Tribunal indicates that since 1989, the applicant has not been convicted of any incident relating to violence either armed or unarmed. There was an incident in the prison in 2004 but the circumstances of this are not clear and this does not evidence any danger in the sense of attacking others or being a risk to others’ physical, as a consequence of violence, safety. I am satisfied that the applicant has shown real contrition for this offence and on the evidence, there is no significant risk that he will be a danger to others. It is true that when he was sentenced in respect of the drug offence, there was reference to a “knife” but there was no indication that it was likely to be used or would possibly be used to commit any violent act. Its only relevance was that it had traces of drugs on it.
34. In relation to the drug offences, I have considered the detailed reasons on sentencing by Nicholson J in December 2003 and in particular, the comments by his Honour that the applicant had been an enthusiastic and vigorous drug dealer in three types of drugs for gain, and in quantities large enough to supply dealers, and that he was well up the chain from the end user. I also note his Honour’s observation that the offences he was dealing with were only a snapshot of the applicant’s ongoing criminal activities and that it was not a one-off offence but a serial and entrenched series of drug-dealing incidents. His Honour considered that the offences called for severe punishment by way of imprisonment and a very substantial term of incarceration. His Honour also took into account that there was a plea of guilty and he accepted that the applicant was contrite, although not as contrite as a co-offender who was also convicted at that time.
35. Nicholson J accepted that the applicant had a dependency on drug money to feed his gambling habit and that this provided some motivation for his involvement in the drug scene. He also accepted that the applicant had sought, whilst in gaol, to address his drug, alcohol and gambling addictions. He also took into account the applicant’s relationship with a Korean lady with whom he had a child and he took into account the need for deterrence, particularly personal deterrence. He referred to the fact that there must be an added component bearing in mind that the driving forces behind his involvement in the drug scene were addictions to gambling and drugs. His Honour considered that there were a number of positive rehabilitation indicators shown in the course of reviewing the material, including his application to the rehabilitation process whilst in prison, the fact that he has a daughter and a partner and the fact that his family still supported him. He considered that the applicant would still need assistance. He sentenced the applicant to six years’ imprisonment to commence on 7 December 2003 expiring 6 December 2009 setting a non-parole period of two years, three months from 7 December 2003 expiring 6 March 2005. He noted that the applicant would be eligible for release on 6 March 2006 depending on the decision of the Parole Board.
36. The applicant has now served two lengthy prison terms and I am satisfied that as a consequence he will be strongly motivated to avoid any risk of further imprisonment or punishment.
37. Included in the material before me is a NSW Department of Corrective Services Probation and Parole Service Pre-release Report, which sets out the applicant’s participation in programmes during the course of his imprisonment. The Probation and Parole officer and the Unit Leader recommended release to parole in their report of 31 January 2006. However, that report expressed concern that the applicant continued to minimise his involvement in the offences and apportioned blame to the Casino, but that he had not let this attitude affect his prison performance. In the Pre-release Report the Officer records:
…
Although he pleaded guilty to the offence, Mr WKCG believes he was poorly treated by the criminal justice system, indicating that he did not deserve a custodial sentence. He attributed blame towards the Casino where he gambled indicating that their continual inducements, such as free food and drink, pressured him to continue gambling at their premises.
…
38. There was some debate between counsel as to the proper interpretation of these observations, but as I read them the applicant is reported as saying that part of the problem leading to his drug addiction and dealing was the gambling, into which he had been enticed by the Casino operators. I do not think this means that he was not contrite at that time, but rather that he was explaining how he came to be involved with drugs through gambling. Having seen him in the witness box under lengthy and detailed cross-examination, coupled with the documentary evidence, I am persuaded that the applicant is genuinely contrite and ashamed of his conduct.
39. There was a substantial amount of evidence from members of his family and potential employers testifying to his general conduct as being non-violent. Some witnesses were cross examined but the bulk of their evidence favourable to the applicant was not shaken. This is consistent with the observation in the Pre-release Report that his file indicated he was a quiet and compliant inmate who seldom came to the attention of staff and this was confirmed by other records.
40. It is evident from the hearing and the material before me, together with the written statements filed on his behalf, that the applicant has extremely strong family support from over a broad range of close family relatives. I accept that the applicant was and is genuinely contrite and ashamed of his past behaviour and that he considers he has brought disgrace on his family. I am also satisfied that he is strongly motivated not to fall back into any pattern of gambling or drug addiction, and is well aware of the impact of such conduct on his family and himself.
41. Counsel for the respondent has correctly pointed out that the strong family support available to the applicant had not previously been sufficient to deter him from committing the drug offences and falling prey to the gambling addiction that motivated the consequent drug addiction and trafficking. However, the applicant had previously kept secret from his relatives any knowledge as to his gambling addiction, drug taking and trafficking. His counsel contends that the position is now different because he has come out openly before his family and relatives and they are aware of his weaknesses. Consequently, he submits that it will be possible for them to focus with greater efficacy on his now known vices. I accept this submission as important in assessing the effectiveness of the family support that can be reasonably anticipated.
42. Evidence was given as to the applicant’s prospects of immediate employment if released from detention and I am satisfied that employment is likely to be available to him, which will give him funds and assist to draw him away from danger of associating with those involved in gambling, drug-taking and trafficking. It is true that the continuation of such employment cannot be predicted with any certainty, having regard to the present state of the economy and the work in hand and anticipated by those witnesses who gave evidence as to employment. Nevertheless, I think the evidence is sufficient to justify the conclusion that he will not be unemployed in the foreseeable future.
43. The substance of the expert evidence, which was not cross-examined on by either side, was to the effect that there was presently a low risk of the applicant reverting to criminal conduct or being a danger to the community, provided that he continued to have positive family support such as living with one of his sisters, obtaining employment through the family, and continuing his drug and gambling counselling upon his release back into the community. The risk was seen to be minimal if he continued to stay away from anti-social influences. He was considered to be of a low risk of recidivism if he makes a good adjustment to the community.
44. Dr Allnutt for the Minister, concluded that the applicant fell into a group of individuals who would be regarded as manifesting a low risk of recidivism if he pursues gainful employment, has the benefit of supporting relationships, abstains from drugs, avoids criminal associates and substance-related environments, and as a moderate risk if he fails in these requirements.
45. On the state of all the evidence before me, I consider that the applicant constitutes such a low risk to the Australian community that he is not a danger. The evidence weighs strongly against the prospect of recidivism.
46. The applicant has referred to the possibility of developing a relationship with his nine-year-old daughter with whom he has had no direct or substantial contact for a long time in the recent past. The prospects of such a relationship developing on the material before me seems remote, but there is still the possibility. Deportation would remove this possibility of a relationship developing. I have taken the relationship into account but I do not give it great weight.
47. In considering the good behaviour of the applicant while in detention, it is important to appreciate that upon release into a less controlled environment he is likely to find it difficult to adjust. I have also taken this matter into account but I consider that there are very strong prospects of his making a positive readjustment, given the extensive family loyalty and support, and his genuine contrition together with the real prospect of immediate gainful employment.
decision
48. Having taken into account the submissions and the evidence before me, I am satisfied that the applicant does not constitute a danger to the safety of any member of the community if he is released and remains in Australia. I therefore set aside the decision of the delegate on the basis that the applicant does not come within the exception provided for in Article 33(2) of the Convention Relating to the Status of Refugees..
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon B Tamberlin QC, Deputy President
Signed: ..............[sgd]...........................................................
Renee Wallace, AssociateDates of Hearing: 27 April 2009 and 12 June 2009
Date of Decision: 6 July 2009
Solicitor for the Applicant: Mr L Geary, Mills Oakley Lawyers
Counsel for the Applicant: Mr N Nicholls
Solicitor for the Respondent: Mr G Johnson, DLA Phillips Fox
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