YFMG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 1699

YFMG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1699 (19 June 2023)

Division:GENERAL DIVISION

File Number:2022/4907          

Re:YFMG  

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:19 June 2023

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 1 June 2022 to refuse to grant the Applicant a Protection Visa under s 65 of the Migration Act 1958 (Cth), is affirmed.

............[Sgd]......................................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

MIGRATION – refusal to grant a protection visa – Applicant has been convicted by a final judgment of a particularly serious crime –  whether Applicant is a danger to the Australian community – seriousness and nature of the crimes committed – offences including assault occasioning actual bodily harm committed against the Applicant’s mother and former wife  – length of sentences imposed – whether any mitigating or aggravating circumstances – Applicant has significant mental health issues – extent of the criminal history – nature of the prior crimes – risk of reoffending and recidivism and the likelihood of relapsing into crime – the criminal record as a whole – prospects of rehabilitation – Applicant found to be a danger to the community – Reviewable Decision affirmed

LEGISLATION

Crimes Act 1900 (NSW) s 59(1)

Migration Act 1958 (Cth) – ss 5, 5(1), 5(1)(a)(i), 5(1)(b)(iii), 5M, 5M(a), 36(1A), 36(1C), 36(1C)(b), 36(2), 36(2C)(b), 65(1), 65(1)(b), 501(3A), 501BA, 501CA

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

CASES

CLXZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1001

DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 514

DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84

DOB18 v Minister for Home Affairs (2019) 269 FCR 636

DOB18 v Minister for Home Affairs [2019] HCASL 331

EBD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 334

FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108

LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17

SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1515

SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055

TYXB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 9

WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434

SECONDARY MATERIALS

Refugee Law Guidelines: Procedural Instruction (Department of Home Affairs, reissued 27 November 2022)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967) – Art 33(2)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

19 June 2023

BACKGROUND

1. The Applicant is a 47-year-old man who was born in Syria.

2. He first arrived in Australia on 21 March 2017 (R2/107) when he was 41 years old as the holder of a Class XB Subclass 202 Global Special Humanitarian Visa (GSH Visa).

3. The Applicant started offending in 2018. On 13 May 2019 he was sentenced to terms of imprisonment for several offences, including two offences of “assault occasioning actual bodily harm (DV)”.

4. Consequently, on 14 June 2019 the Applicant’s GSH Visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) on the basis that he did not pass the character test because he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (Cancellation Decision).

5. On 27 June 2019, the Applicant sought revocation of the Cancellation Decision but on 31 January 2020, a delegate of the Minister refused to revoke the Cancellation Decision. The Applicant was notified of the delegate’s decision on 4 February 2020.

6. On 9 February 2020, the Applicant applied to the Tribunal for a review of the delegate’s decision. The application was heard by a differently constituted Tribunal on 6 and 7 April 2020. On 28 April 2020 that Tribunal affirmed the delegate’s decision (T13).

7. On 31 August 2021, the Applicant lodged an application for a protection visa (T4; T5/47).

8. However, on 1 June 2022, a delegate of the Respondent decided to refuse to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Protection Visa) under s 65 of the Migration Act (T15). This is the Reviewable Decision that is currently before me.

9. The delegate of the Respondent decided that the Applicant did not meet the criterion in ss 36(1C) and 36(2C)(b) of the Migration Act because he had been convicted of a “particularly serious crime” and was considered by the delegate to be a danger to the Australian community. The delegate also found that s 36(2C)(b) applied and that the Applicant did not satisfy the criterion in s 36(2) of the Migration Act (T15/219 and 263).

10. On 14 June 2022, the Applicant sought review of the Reviewable Decision in this Tribunal (T2).  

    ISSUES

11. The issues for determination are whether I consider, on reasonable grounds, that:

    (a)the Applicant has been convicted by a “final judgment of a particularly serious crime”; and

    (b)whether the Applicant is a danger to the Australian community.

    MATERIAL BEFORE THE TRIBUNAL

12. The application was heard on 1 November 2022 by Microsoft Teams. The Applicant was assisted by his brother, K, and the Respondent was represented by Mr Hawker of Sparke Helmore Lawyers. The Applicant was also assisted by an interpreter in the Armenian language.

13. At the hearing, the Applicant gave oral evidence and was cross-examined. No other witnesses were called.

14. The following documents were admitted into evidence at the hearing:

    (a)section 37 documents, labelled T1 to T16, comprising pages 1 to 272 (Exhibit 1);

    (b)Tender bundle, labelled 1 to 7, comprising pages 1-614 pages (Exhibit 2); and

    (c)invitation from the detention centre inviting the Applicant to a barbeque on 1 November 2022 (Exhibit 3).

15. Prior to the hearing the Respondent lodged a Statement of Facts, Issues and Contentions (SFIC) dated 8 August 2022. The Applicant did not file any written submissions.  

    LEGISLATIVE FRAMEWORK

    Decisions to grant or refuse a visa

16. Subsection 65(1) of the Migration Act provides:

    (1)   Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

    (a)         if satisfied that:

    (i)        the health criteria for it (if any) have been satisfied; and

    (ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

    (iii)     the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

    (iv) any amount of visa application charge payable in relation to the application has been paid;

    is to grant the visa; or

    (b)         if not so satisfied, is to refuse to grant the visa.

    Criteria for protection visas

17. Subsection 36(1A) of the Migration Act provides that:

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

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

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

18. Further, s 36(1C) of the Migration Act provides:

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

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

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

19. Further, s 36(2) of the Migration Act provides in part:

    (2)   A criterion for a protection visa is that the applicant for the visa is:

    (a)       a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

20. Subsection 36(2C)(b) of the Migration Act provides that a person is ineligible for the grant of a protection visa in certain circumstances:

    (2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

    …

    (b)         the Minister considers, on reasonable grounds, that:

    (i)        the non-citizen is a danger to Australia's security; or

    (ii)     the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

21. Subsections 36(1C)(b) and 36(2C)(b) of the Migration Act are disentitling provisions. They create criteria for a protection visa that an applicant must not be a person whom the Minister (and in this case the Tribunal) considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. A finding that an applicant is a danger to the Australian community will mean that they do not meet the criterion, and are ineligible, for a protection visa, even if (as is the case in this application) the applicant is found to be owed protection obligations and that there is a real risk of an applicant suffering significant harm if returned to their country of origin.

    Refugees Convention

22. Section 36(1C) was inserted into the Migration Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) to codify art 33(2) of the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol (Refugees Convention).

23. Article 33 of the Refugees Convention provides:

    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 judgment of a particularly serious crime, constitutes a danger to the community of that country.

    Particularly serious crime

24. Section 5M of the Migration Act defines a “particularly serious crime”:

    For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

    (a)         a serious Australian offence; or

    (b)         a serious foreign offence.

25. Section 5 of the Migration Act defines “serious Australian offence” as follows:

    “serious Australian offence” means an offence against a law in force in Australia, where:

    (a)        the offence:

    (i)        involves violence against a person; or

    (ii)       is a serious drug offence; or

    (iii)       involves serious damage to property; or

    (iv)     is an offence against section 197A or 197B (offences relating to immigration detention); and

    (b)       the offence is punishable by:

    (i)        imprisonment for life; or

    (ii)       imprisonment for a fixed term of not less than 3 years; or

    (iii)      imprisonment for a maximum term of not less than 3 years.

    (Original emphasis.)

    Refugee Law Guidelines

26. Further guidance for decision-makers can be found in the Refugee Law Guidelines: Procedural Instruction (Department of Home Affairs, reissued 27 November 2022) (Refugee Law Guidelines).

27. Paragraph 3.26.3 of the Refugee Law Guidelines provides guidance regarding the assessment of “danger to the community”:

    The Australian courts have determined that the approach to the assessment of whether an applicant, having been convicted of a particularly serious crime, is a danger to the community has two distinct considerations:

    1. whether, at some time in the past, the applicant has been convicted by a final judgment of a particularly serious crime (see 3.26.1 Convicted by a final judgment and 3.26.2 Particularly serious crime), and

    2. whether the applicant is, at the time of the protection visa decision and into the future, a danger to the Australian community.

    In other words, the conviction by a final judgment of a particularly serious crime alone is not sufficient to say that the applicant is a danger to the community. Nor is it sufficient to find that the applicant was once a danger. Rather, decision makers must determine whether the applicant is, at ‘present and for the indefinite future’, a danger to the Australian community.

    Since the assessment of danger to the community is a consideration separate from the commission of a particularly serious crime, there is no ‘category’ of offending that will automatically result in a person being found to be a danger to the community. The assessment whether an individual is a danger to the community is one of ‘fact and degree’ to be ‘determined in the circumstances of a particular case.

    In WKCG and Minister for Immigration and Citizenship (WKCG) [[2009] AATA 512], the Tribunal listed factors that assist in assessing whether a person is a danger to a member or members of the community:

    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.

    Those relevant considerations were described as pertinent by Logan J in DOB18 v Minister for Home Affairs [[2019] FCAFC 63].

    In forming a view of the risk of recidivism, re-offending or relapse, decision makers can consider the factors listed in WKCG, such as mitigating and aggravating circumstances during commission of the offences and the totality of the applicant’s criminal record. As noted in Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs [[1977] AATA 35]:

    ... The rehabilitation of a migrant who has suffered a conviction is not only in his interests - it is in the interests of the community of which he is a member.

    In the present case, the prospect of rehabilitation is the principal issue ...

    ...

    Rehabilitation is never certain. One cannot predicate 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 ...

    (Footnotes omitted.)

    Case law

28. The meaning of “danger to the Australian community” in s 36(1C)(b) of the Migration Act, was discussed by Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG) and Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636 (DOB18).

29. Deputy President Tamberlin and Logan J have often been regarded by the Tribunal as having slightly different approaches to the interpretation of “danger to the Australian community”. However, the judgment of Collier J in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 514 (DMQ20), provided further clarification as to the interpretation of “danger” and found that their approaches were not inconsistent (at [46]).  

30. I will briefly outline the dicta of Deputy President Tamberlin in WKCG, Logan J in DOB18, and other relevant judgments, before turning to Collier J’s judgment in DMQ20 and the judgment of the Full Court of the Federal Court in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 (DMQ20 Full Court) which dismissed an appeal from Collier J’s judgment in DMQ20.

31. In WKCG, Deputy President Tamberlin articulated a broader assessment of “danger” in the context of s 36(1C)(b) of the Migration Act, at [31]:

    The language of the Article directs attention to the expression ‘danger’. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at ALR 38; ALD 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression ‘danger’ involves a lesser degree of satisfaction than that required by the expression ‘probable’.

    (Original underlining, my emphasis in bold.)

32. DOB18 was a decision of the Full Court of the Federal Court which involved the judicial review of an exercise of power under s 501BA of the Migration Act. Logan J, by way of obiter at [83], articulated a narrower interpretation of “danger” in s 36(1C) of the Migration Act than Deputy President Tamberlin:

    In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a ‘risk’, perhaps small. In my view, read in context, ‘danger’ in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about ‘danger’. In my view, it carries a narrower and more restrictive meaning that just ‘risk’.

    (Emphasis added.)

33. On 16 October 2019, the High Court refused to grant special leave to appeal the decision in DOB18 v Minister for Home Affairs [2019] HCASL 331.

34. In LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17 (LKQD), Jackson J rejected a submission that “the danger referred to in s 36(1C) must be construed to mean a very serious danger”. His Honour agreed with Deputy President Tamberlin’s approach and stated, at [57]:

    I agree with Deputy President Tamberlin where, in WKCG at [25], he observed that the words used in Art 33(2) are ‘plain and simple English’. By extension, so are the words of s 36(1C)(b). And the section does not say ‘very serious danger’. It just says ‘danger’.

1. And further, Jackson J explained in LKQD at [62]:

   To the extent that Art 33(2) is an exception to the principle of refoulement, s 36(1C) can similarly be characterised as an exception to the principles of protection reflected in s 36(2). None of that requires any departure from the explanation of the ordinary meaning of s 36(1C) which Deputy President Tamberlin gave in WKCG. I note that Logan J, sitting on the Full Court, has recently held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’ and has suggested that may be inconsistent with WKCG: DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [83]. But even the standard suggested by his Honour does not rise to the level of ‘very serious danger’ urged on behalf of the applicant.

2. In contrast, in the Full Court decision of KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108, Bromberg J favoured the approach of Logan J for the following reasons (at [54]-[55]):

   Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia — a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]). Nor is any past criminality sufficient to engage s 36(1C)(b). To engage that subsection a person must have been convicted by a final judgment of a “particularly serious crime” (as defined by s 5M) and therefore be a “danger to the Australian community”.

   That a stringent level or standard is required by s 36(1C) in relation to the prerequisites that must exist to engage its operation is explained by the nature of the balancing exercise by which those standards have been formed. A host State’s tolerance of the risk of harm is understandably higher in relation to people who are in need of protection and who, in the absence of being provided protection, may face significant harm.

3. The Tribunal has previously found that it was not necessary to decide between the two interpretations because it was satisfied that the Applicant was a danger to the community regardless of which approach was followed (TYXB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 9; SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1515).

4. Such an approach was upheld by Rofe J the Federal Court in FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541 at [68]:

   For present purposes, it is unnecessary for me to determine whether or not there is any real difference between the standards of “danger” expressed in WKCG, DOB18 and KDSP. The Tribunal’s reasons identify the standard of danger articulated by Bromberg J in KDSP, and noted that the considerations in WKCG provided a useful framework to assist the assessment. I see no error with that approach.

5. In DMQ20, Collier J, following the approach of Kerr J in EBD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 334 found that “danger” should be defined with reference to its “ordinary English” meaning.

6. Her Honour explained that WKCG and DOB18 were dicta that provided guidance as to the ordinary meaning of s 36(1C)(b) of the Migration Act. Her Honour stated, at [35]-[38]:

   The applicant submitted that, to the extent that the Tribunal defined “danger to the community” by reference to the test articulated in WKCG rather than by Logan J in DOB18, the Tribunal erred as a matter of law.

   Recently in EBD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 334, after having regard to WKCG and other authorities, Kerr J said:

   28. The expression “danger to the Australian community” is to be construed in its context, but has no technical meaning. The phrase is used in both s 36 and s 501(6)(d) of  the Act, albeit in slightly different contexts. The language is that of ordinary English. Whether it is satisfied involves a close consideration of the whole of the relevant facts and circumstances as they present today. I am not sure that there is any one test as such. The view that a person is a danger to the Australian community can be held in a variety of circumstances. Prior criminal conduct is obviously relevant. The degree of risk of recidivism is obviously relevant, and that requires attention to his motivation not to re-offend. What rehabilitation a person has undergone is obviously relevant. When his last offending occurred is relevant. The views of those who know him well can be relevant.

   In my view there is considerable force to the observations of Kerr J in respect of the concept of “danger to the Australian community” for the purposes of s 36 (1C)(b) of the Migration Act. As his Honour said, the language is that of ordinary English, has no technical meaning, and ought to be construed in its context.

   Notwithstanding the detailed submissions of both Counsel in the present application, I respectfully note that relevant observations in WKCG and DOB18 were both dicta, could not be said to conclusively define the meaning of “danger to the Australian community” for the purposes of s 36(1C)(b), and in my view do no more than provide guidance in respect of the ordinary meaning of the words in that section.

   (My emphasis.)

7. With respect to the meaning of “danger” in s 36(1C)(b) of the Migration Act, Her Honour stated at [39]-[46]:

   Turning now to s 36(1C)(b), I note that “danger” is a term in common use. The Oxford English Dictionary defines it relevantly as:

   Liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril

   The Macquarie Dictionary similarly defines “danger” as:

   noun 1. liability or exposure to harm or injury; risk; peril.

   2. an instance or cause of peril.

   Section 36 (1C)(b) of the Migration Act refers to danger “to the Australian community”. The section does not require there to be any specific level of danger to the Australian community from the visa applicant. The fact that s36(1C)(b) is referable to the visa applicant having been convicted by a final judgment of a particularly serious crime suggests however that, in order for s 36 (1C)(b) to be enlivened:

   ·     there must be a real risk of exposure to harm in the Australian community from the visa applicant;

   ·     the harm the Australian community would be exposed to by the visa applicant would be proportionate or referable to the “particularly serious crime” for which the visa applicant had been convicted; and

   ·     the Minister must have reasonable grounds for forming that view.

   As Tamberlin DP observed in WKCG at [25], the question whether a person constitutes a danger to the Australian community is one of fact and degree. This proposition is not in dispute. However at [31] it was further observed that 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.

   Justice Logan in DOB18 at [83] opined that, read in context, “’danger’ in s 36 (1C)(b) means a risk that is present and serious”. His Honour continued:

   83. …To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”

   In the present case after referring to both WKCG and DOB18, the Tribunal at [64] found that in order for a person to be a “danger” there must exist, at the time of the decision of the Minister, a present risk which is “real” or “significant” or “serious”, and which is neither remote nor fanciful, that the person will cause harm of a sufficiently serious nature in the present or future.

   …

   I agree with the Tribunal’s articulation of principle at [64] in respect of whether the applicant was a “danger to the Australian community”. I do not consider it to be inconsistent with comments of Logan J in DOB18, rather I consider the Tribunal’s statement to be an accurate statement of the law. I do not consider that there is any material conflict between the legal principles as explained in WKCG and Logan J in DOB18. I am not satisfied that the Tribunal asked itself the wrong question in considering whether the applicant was a danger to the Australian community, as the applicant claims in ground 2.

   (My emphasis.)

8. DMQ20 was discussed with approval in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055. Abraham J, at [57]-[59], accepted the ordinary English approach of Collier J, and provided a helpful explanation as to the scope of the “Australian community”:

   In this context I note that WKCG was cited recently in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 514. At [37]-[38] Collier J observed that there is considerable force to the concept that “danger to the Australian community” for the purposes of s 36(1C)(b) is the use “of ordinary English, has no technical meaning, and ought to be construed in its context”. At [42], her Honour observed that “the question whether a person constitutes a danger to the Australian community is one of fact and degree”. Collier J referred to what was said to be a conflict between WKCG and the observations of Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 regarding assessment of the degree of risk. Her Honour observed at [46] that she considered there was no material conflict between the legal principles as explained in each. I note that the Tribunal in that case appeared to adopt the same approach, of which no complaint was taken. As illustrated by these cases (and others), although there has been debate as to the construction of s 36(1C)(b) and the passages in WKCG discussing it, that debate has been confined to assessing the degree of risk to the community.

   DMQ20 reflects the two aspects of s 36(1C)(b), evident from the provision. As the applicant submitted, in order for s 36(1C)(b) to operate at all, the person must have been convicted by a final judgment of a particularly serious crime. It is only on the establishment of that premise that the second stage is engaged. That second stage is a limiting stage to determine whether the person is a danger to the Australian community.

   I therefore do not accept that the phrase “the Australian community” in s 36(1C)(b), means that there must be a danger to “the whole of the Australian community” (and not less than, including a segment of the community), in the manner contended by the applicant. What constitutes a danger to the Australian community stands to be determined upon the facts and circumstances of individual cases. A person may pose a danger to the community by harming individuals within that community. The applicant has not established the premise underpinning this ground. It follows that the applicant has not established error by the Tribunal in its reference to the guidance in WKCG.

   (My emphasis.)

9. DMQ20Full Court dismissed an appeal against Collier J’s judgment in DMQ20. In doing so, the Full Court provided further guidance and clarification as to the meaning of “danger” and the “Australian community” in the context of s 36(1C) of the Migration Act.

10. In DMQ20 Full Court, Rares J observed, at [49]:

    The Parliament expressed the disqualifying thresholds in ss 36(1B) and (1C) differently, using, in s 36(1B), the concepts of “a risk to security” and, in s 36(1C), “a danger” to Australia’s security or to the Australian community. It follows that the Parliament intended that the words “a danger” in s 36(1C), as reflecting its treaty obligation under Art 33(2), to refer to something more than a mere risk that the person is a danger to Australia’s security or to the Australian community.

11. And further, at [51]-[54], Rares J observed:

    The Oxford English Dictionary online defines “danger” as “liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk; peril” (sense 4a) and the Macquarie Dictionary online defines it as “liability or exposure to harm or injury; risk; peril” (sense 1) and “an instance or cause of peril” (sense 2). 

    A danger, in its natural and ordinary meaning as used in Art 33(2) and s 36(1C) (as understood by States Party to the Refugees Convention) conveys a threat of a substantial kind to Australia’s security or the Australian community based on objectively reasonable grounds (or suspicion): Suresh [2002] 1 SCR at 51-52 [90]-[91]; EN (Serbia) [2010] QB at 655 [45], 676 [114], 677 [118]; Zaoui [2006] 1 NZLR at 310 [45].

    The concept of what is “a danger” involves an evaluation along a spectrum comprising, first, the probability or likelihood of the occurrence of an event or circumstance and, secondly, the consequence of its occurrence.

    Thus, the word “danger” connotes that there are reasonable grounds to perceive a threat of serious, or potentially serious, consequences if the situation said to pose the danger were ignored. …

    (My emphasis.) 

12. In a separate joint judgment, Thomas and Snaden JJ undertook a detailed analysis of the concept of “danger”. For the sake of brevity, I have summarised some of their Honours’ analysis, but in totality it appears at [106]-[120].

13. Their Honours confirmed that the term should be given its ordinary meaning, at [106]:

    Neither the Act nor the Refugees Convention defines what is or is not within the concept of “danger”.  Insofar as concerns its incorporation within s 36(1C)(b) of the Act, then, “danger” is a term of everyday usage, which should be understood to carry its ordinary meaning.

14. Their Honours outlined the link between danger and harm:

    “there exists a “danger” if there exists a sufficient risk, possibility or probability of sufficient harm” (at [110]);

    “it is clear enough that the reference in s 36(1C)(b) of the Act to “danger” was intended to denote a prospect of harm” (at 111); and

    ““Danger” implies a prospect (howsoever measured) of injury (at the least), most likely of physical or psychological kinds” (at [111]).

15. They explained that decision-makers must engage in both a quantitative and qualitative analysis, at [113]:

    When assessing the presence of danger (in the sense that the natural and ordinary meaning of that word imports), the required analysis is both quantitative (what is the level of probability that something might happen?) and qualitative (what are the consequences if it does?). …

16. Thomas and Snaden JJ provided the following example concerning the assessment of danger  in the context of violent offending, at [116]:

    In its human form, then, “danger” presupposes that there should be something about a person’s character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of routine interaction.  Ordinarily, that would fall to be assessed by reference to the person’s prior conduct and the likelihood that it might be repeated. A person with no history of violent offending would ordinarily be thought not to pose any danger to others, no matter that he or she might possess some real capability to inflict harm.  A person with an appetite for and history of violence, on the other hand, might well be thought otherwise.

17. Thomas and Snaden JJ advanced two propositions from their analysis of danger (at [118]-[120]:

    First, it is likely not possible—and much less is it advisable to attempt—precisely to define what does and does not constitute “danger” for the purposes of s 36(1C)(b) of the Act. It is a concept without technical meaning that falls for consideration under the light of the whole of the relevant facts and circumstances that present in any given matter: Re WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434, 438 [25] (Tamberlin DP); LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17, 30 [57] (Jackson J). Perhaps like other indefinable concepts, one generally knows it when one sees it (to borrow from the famous observation of Mr Justice Stewart in Jacobellis v Ohio 378 US 184, 197 (1964); see also the observations of the Victorian Court of Appeal in R v Panozzo (2007) 178 A Crim R 323, 340 [43] (Chernov and Redlich JJA and King AJA)).

    Second, whatever might be said of what does not fall within the conceptual limits of “danger”, it is clear beyond doubt that the circumstances with which the present matter engages fall well and truly within them. The Tribunal concluded that “…there exists a present risk which is real, significant and serious, which is neither remote nor fanciful[,] that the [appellant] will cause physical harm and perhaps severe physical harm, or extreme emotional harm[,] in the present or the future…”  The present appeal (leaving to one side the proposed additional ground that the court declined to entertain) does not seek to challenge that finding. Rather, the contention is put simply that it does not bespeak a risk of harm that is sufficient to constitute the appellant as a “danger” in the sense that that term is employed in s 36(1C)(b) of the Act.

    That proposition cannot be accepted. A finding that somebody poses a real, significant, serious and present risk of visiting physical harm very squarely suffices to establish that they constitute a “danger” for the purposes of s 36(1C)(b) of the Act. That is the way in which the Tribunal construed the statutory concept and doing so involved no misunderstanding of the kind about which the appellant complains. The learned primary judge was drawn so to conclude and, with respect, her Honour did not err.

    CONVICTED BY A FINAL JUDGMENT OF A PARTICULARLY SERIOUS CRIME

18. The Respondent submitted that the Applicant has been convicted by a final judgment of two particularly serious crimes.

19. These were two “assault occasioning actual bodily harm (DV)” offences.

20. The first of these offences was committed on 21 October 2018. He pled not guilty but was convicted on 13 May 2019. The victim was the Applicant’s former wife whom he was married to at the time.

21. The facts of this offence were summarised by the Tribunal who decided not to revoke the mandatory cancellation of the Applicant’s GSH Visa under s 501CA of the Migration Act (First Tribunal) (see CLXZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1001). The First Tribunal stated (at [49]-[50]):

    The Respondent’s solicitor took the Applicant to police records relating to the first of two his convictions for assault occasioning actual bodily harm for which he was convicted on 13 May 2019. Those records indicate that the Applicant’s former partner returned home on 21 October 2018 after leaving the home on 19 October owing to a reported domestic matter. The Applicant’s then wife, the victim, returned to the premises with her two sisters, brother-in-law and their nephew to collect some of the victim’s belongings. The Applicant began arguing with the victim about attending “his home” and told them to leave. The Applicant grabbed hold of some personal items and started throwing them around the unit. The Applicant then used a leather belt with a metal belt buckle to hit the victim to the right leg causing her immediate pain. The victim’s brother-in-law intervened to defend the victim. They grabbed each other and the Applicant struck the witness to his face twice with his hands. An AVO was issued in relation to this offending for the protection of the Applicant’s former wife.

    The Applicant pleaded not guilty to this offence but was ultimately found guilty. At the hearing before the Tribunal, the Applicant did not dispute the police version of events. He said that he had hit his wife with the belt because she and her siblings had been mocking him. He said that he had made a mistake and that what he had done was wrong.

1. At the hearing of this application the Applicant said that he hit his brother-in-law because his brother-in-law hit him first (transcript/34).

2. The second of these offences was committed on 8 October 2018. The victim was the Applicant’s mother. He pled guilty to this offence and was also convicted on 13 May 2019.  

3. This offence was also described by the First Tribunal, at [51]-[52]:

   The Respondent’s solicitor took the Applicant to police records relating to the second of two his convictions for assault occasioning actual bodily harm for which he was convicted on 13 May 2019. Those records indicate that on 8 October 2018 the victim, the Applicant’s mother, had missed a number of telephone calls from the Applicant.

   The police report indicated that the Applicant entered his mother’s residence and immediately began screaming abuse at her, calling her a “prostitute”, apparently angry that his mother had not answered her phone. The Applicant then punched his mother in the head and slapped her to her left eye and head area approximately five times. The Applicant’s mother said words to the effect of “son, what have I done to you? Why are you doing this?” The Applicant screamed at his mother “Fuck you. Fuck you. You’re an escort.” The Applicant’s mother then pretended to use the toilet as she feared further assault. The Applicant’s mother left the house and did not return for some days.

4. The police record referred to by the First Tribunal is also before me (R2/392). I note it states that the Applicant’s mother sustained a black eye, including bruising to her eye lid, her ear was tender at touch and her head felt “heavy” after the assault (R2/393).

5. I further observe that the reference to “five times” in the police record was crossed through by hand and “once” has been inserted and initialled. This is consistent with the Applicant’s evidence at my hearing. When the events were put to him his evidence was that he punched his mother once and slapped her once (transcript/29). 

6. I find that the Applicant has been convicted by a final judgment of a particularly serious crime. That is because his two “assault occasioning actual bodily harm (DV)” offences are “serious Australian offence[s]” under s 5M(a) of the Migration Act for the following reasons:

   (a)A “serious Australian offence” is defined in s 5(1) of the Migration Act to include an “offence that involves violence against a person” (para 5(1)(a)(i)) and which is punishable by a maximum term of imprisonment of not less than three years (para 5(1)(b)(iii)). Both offences involved violence against a person (the Applicant’s mother and his former wife).

   (b)The offence of “assault occasioning actual bodily harm” is punishable by imprisonment for a maximum term of five years. Specifically, s 59(1) of the Crimes Act 1900 (NSW) provides: “Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years”. 

7. Having found that the Applicant has been convicted by a final judgment of a particularly serious crime, the remaining issue is whether the Applicant is a danger to the Australian community.

   WHETHER THE APPLICANT IS A DANGER TO THE AUSTRALIAN COMMUNITY

8. In WKCG at [26], Deputy President Tamberlin identified the following relevant factors to consider in assessing whether an Applicant is a “real or significant risk or possibility of harm to one or more members of the Australian community”. These factors were referred to above at paragraph [27] in the excerpt from paragraph 3.26.3 of the Refugee Guidelines, but for clarity, I have repeated them here as follows:

   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.

9. Some of the factors are similar and overlap and so I have therefore considered them together in the following sections under three headings.

   Criminal record as a whole, extent of the criminal history, period over which prior crimes took place, seriousness and nature of the crimes

10. The Applicant arrived in Australia on 21 March 2017, and he began offending relatively soon after arrival, with his first offence being committed on approximately 8 October 2018.

11. He does not have a lengthy criminal history. He has been convicted of seven criminal offences in total, and has appeared in Court on three occasions, being 21 November 2018, 13 May 2019, and 15 January 2020.

12. His offending occurred over a relatively short period of time between 8 October 2018 and 23 October 2018.

13. The Applicant’s offending is varied in nature. It can be generally characterised as two dishonesty offences involving property, a weapons possession offence, two domestic violence assault offences, a breach of a violence restraining order offence and an indecent assault offence. I will now outline the Applicant’s offending in more detail.

14. On 21 November 2018 the Applicant was convicted of “goods in personal custody suspected of being stolen” and “custody of knife in public place – first offence” for which he received fines of $500 and $150 (R2/31). According to the police facts sheet (R2/421-422), on 20 October 2018, police received a phone call from a man whose bike had been stolen the night before. The man had located his bike. Police went to meet the victim who took them to the bike which was chained to three other bicycles. Along with the man’s bike was a bag containing medication in the Applicant’s name. Police looked up the Applicant’s phone number and asked him to return to where the bike had been located. Police looked through other belongings that were found with the bikes and found several tools including wire cutters, a cordless drill and some Allen keys. When the Applicant arrived, police searched him and found two knives in pouches on his belt. Police searched through the Applicant’s bag and found another three knives. The Applicant’s explanation was recorded as being that he bought the man’s bike a month ago, that he did not steal any of the other bicycles and that he found them around a train station in a damaged state and had repaired them. He stated that he used one of the knives as a repair tool and the other to prepare food. At the hearing the Applicant agreed he had two knives on his belt, initially denied having three other knives in his bag saying that he had his work tools with him, but then agreed that he had three knives in his bag (transcript/26-28).

15. On 13 May 2019 the Applicant was convicted of four offences by two different Magistrates (R2/30-31). Magistrate McGowan dealt with the “assault with act of indecency” offence and Magistrate Douglass dealt with the two “assault occasioning actual bodily harm (DV)” and the “contravene prohibition/restriction in AVO” offences and made an apprehended domestic violence order to protect the Applicant’s mother who was the victim of one of the assault offences (R2/63-64; 491-492). I only have before me the transcript of the proceedings before Magistrate McGowan for the “assault with act of indecency” offence.

16. One of the “assault occasioning actual bodily harm (DV)”, convictions was for the assault against his former wife committed on 21 October 2018, for which he was sentenced to 13 months imprisonment, commencing on 16 October 2018, and concluding on 15 November 2019, with a non-parole period of seven months. I have already outlined the facts of this offending above.

17. The “contravene prohibition/restriction in AVO (Domestic)” offence which resulted in the Court imposing a two-year community corrections order involved the Applicant breaching an AVO where his wife was the protected person. The facts were that on the same day that he committed the “assault occasioning actual bodily harm (DV)” offence against his former wife, police obtained a provisional AVO to protect her (R2/385-386). One of the conditions of the order was that the Applicant was not to approach or to contact her in any way. On 23 October 2018 the Applicant attended her home in breach of this provisional AVO (T13/183). The Applicant claimed he received a call from an unknown woman asking him to attend his wife’s home because she wanted to see him (transcript/43-44). I note that the Reviewable Decision records that Magistrate Douglass stated that “this offence is a serious example of this type of offence because he travelled a great distance to be in the area where the protected person resided” (T15/252).  

18. The Respondent mistakenly suggested that the Applicant breached the order when he attended her house and threatened her by saying, “I will hurt you, I will get a knife and kill you, or I can burn you by fire, I’m not scared, I can do anything” and cites paragraph [56] of the First Tribunal’s reasons for decision (Respondent’s SFIC, para [43]). My reading of the First Tribunal’s reasons at paragraph [56] was that those words were an example of conduct on the part of the Applicant against his former wife that led to the restraining order being granted. Specifically, the First Tribunal stated:

    … the Applicant’s former wife had indicated that after they married in 2018 the Applicant began threatening the wife, saying things like, “I will hurt you, I will get a knife and kill you, or I can burn you by fire, I’m not scared, I can do anything”. …    

19. This is confirmed by the transcript of the First Tribunal hearing which refers to the police facts record stating that the victim (the Applicant’s former wife) and a witness drove down the street and saw the Applicant out the front talking to police officers well within the 100-metre seclusion zone (R2/317).

20. Also, on 13 May 2019 the Applicant was convicted of another offence of “assault occasioning actual bodily harm (DV)”, which was the assault against the Applicant’s mother committed on 8 October 2018, for which the Court imposed a two-year community corrections order. I have already outlined the facts of this offence above. The police facts sheet further records that several days after the assault on his mother on 8 October 2018, being 14 October 2018, the Applicant returned to his mother’s house (R2/393). The First Tribunal summarised what happened (at [53]):

    On 14 October 2018, the Applicant returned to his mother’s home demanding that she assist him in using the toilet as he had diarrhoea. He screamed at his mother “You’re a prostitute. Come here. I want to bruise the other eye also so that you remember it.” He yelled at his mother “I am calling five people to come and I want to sell jackets”. It was recorded that the Applicant’s mother believed that comment to be a threat that the Applicant would have five men attend her home to rape her. The Applicant continued to scream vile abuse at his mother. The Applicant’s mother called another son by telephone asking that he collect her as she was afraid of further physical violence by the Applicant.

21. Police then sought an apprehended domestic violence order to protect the Applicant’s mother which they served on him on 15 October 2018 (R2/394; R2/395--405). The Reviewable Decision records that Magistrate Douglass “said that the assault against his mother is a serious example of this particular type of offence and ‘it falls just under a midrange offence in my view’” (T15/248).

22. Finally, on 13 May 2019 the Applicant was also convicted of “assault with act of indecency” for which he was sentenced to 12 months imprisonment commencing on 13 May 2019 and concluding on 12 September 2019, with a non-parole period of four months. The offence occurred on 22 October 2018. The prosecutor described the offence to the Court as follows (R2/33):

    The alleged victim … states she caught the train then a male sat next to her and the act that is said to constitute the offence – is there’s an allegation that the male has rubbed his hand against her leg repeatedly, even after requests by the alleged victim to stop and it is alleged also that at some stage whilst doing that has masturbated under his clothes at the same time whilst on the train or certainly appeared to the alleged victim to be masturbating at the same time.

23. The Applicant pled not guilty but after reviewing video footage and hearing the victim’s evidence, the Magistrate found that it was “clearly” the Applicant, and he was found guilty. The Magistrate also described the offending as “predatory behaviour” and that people should “be able to get on the train … [and] not be molested” (R2/58 and 60). Her Honour further stated: “I cannot imagine what she feels like now from going on public transport I really cannot and thankfully there were other people on the carriage that stepped in or else it could have been far more traumatic than it was” (R2/60). Indeed, in her witness statement the victim stated that she “was extremely scared”, “was shaking and crying”, and that she feels anger at what the Applicant did to her. She said that the offending against her “made me feel violated and feel like you cannot trust anybody” (R2/363). 

24. The Applicant appeared in court on 15 January 2020 for the offence of “larceny value <=$2000 – T2” committed on 22 October 2018 (R2/410). According to the police facts sheet (R2/431-432), the Applicant entered a bank and approached a self-service computer. A bank employee offered him assistance and checked that he was a customer of the bank. There was a tablet (a type of iPad) on the table. The Applicant was apparently having difficulty with the bank’s application on his iPhone and when the staff member could not resolve the issue, he provided the Applicant with directions to the nearest Apple store. The Applicant then became aggressive and left the bank. The staff member noticed that the tablet was no longer on the table. The staff member contacted the Applicant and asked him to return. When the Applicant returned, the staff member asked him if he had picked up the tablet by accident and the Applicant replied, “No, I would never do that”. The staff member saw two phones in the Applicant’s pocket and identified one of them as the bank’s tablet. When the staff member asked if he could check whether one of them was the bank’s tablet, the Applicant became “extremely aggressive, yelling at [the staff member] before leaving the bank”. The sentence recorded was “S10A conviction with no other penalty” (R2/410).  

25. As I have outlined above, the Applicant has received a range of penalties for his offending. He received fines for the offences he was convicted of on 21 November 2018 being “goods in personal custody suspected of being stolen” and “custody of knife in public place – first offence” which suggests the Court found these offences to be less serious in nature. Similarly, the imposition of no penalty for the “larceny value <=$2000 – T2” offence was indicative that it was a less serious offence.

26. Indeed, in addition to the sentences imposed (fines and no penalty), the nature of these offences indicate that they can be characterised as less serious. The harms associated with dishonesty offences, such as possessing suspected stolen property and larceny, can cause financial harms in the form of increased costs to the community including increased insurance premiums and psychological distress to victims. Being in possession of weapons in a public place is, by its nature, slightly more serious because there is the potential for those weapons to be used and for members of the community to be threatened, injured, or killed.

27. The sentence of imprisonment for the “assault occasioning actual bodily harm (DV)” offence against the Applicant’s former wife of 13 months, is indicative that the Court regarded the offending as being serious. Indeed, the offending involved the Applicant using a leather belt with a metal belt buckle to hit the victim to the right leg which caused her immediate pain. At the same court appearance, the Court imposed a two-year community corrections order for the “assault occasioning actual bodily harm (DV)” against his mother. Despite receiving this community-based order (rather than a sentence of imprisonment), the facts of this offending, being that the Applicant punched his mother in the head and slapped her which resulted in a black eye, bruising and tenderness for which his mother sought medical attention, are indicative of its seriousness. Domestic violence offences by their nature are serious because, as well as resulting in physical injuries, they can result in loss of life and psychological harms.

28. The Court also imposed a community corrections order for the “contravene prohibition/restriction in AVO (Domestic)” offence where the Applicant breached an apprehended violence restraining order protecting his former wife. The AVO was made after being requested by police shortly after the Applicant assaulted his former wife with the belt. Despite the nature of this penalty, the Applicant attending his former wife’s house again shortly after assaulting her with a belt knowing that there was a restraining order in place is more serious than that penalty would suggest. Whilst not as serious as offences involving physical violence, these types of offences can make victims fearful of their safety, and consequently this type of offending can have a negative psychological impact on victims. Restraining orders are in place to protect the safety of those protected, and so breaching them can cause psychological and even physical harms to victims, depending on the nature of the breach. 

29. The Applicant was sentenced to 12 months imprisonment for the “assault with act of indecency” offence against a female member of the public travelling on the train who was unknown to him, which is also indicative that the offence was viewed seriously by the Court. Indeed, as I stated above, the Magistrate described the offending as “predatory behaviour” and indicated that people should be able to travel on the train without fear of molestation. The victim also described the negative impact of the offending including that the victim felt violated and that she could not trust anybody. The harms that could result to members of the Australian community from offending such as an indecent or other sexual assault are potentially very serious and could include psychological harm and physical injuries.

    Mitigating or aggravating circumstances

30. The Applicant has significant mental health issues that contributed to his offending.

31. At the hearing the Applicant agreed that the information in an electronic record of a conversation between an officer from the parole unit and his brother on 10 May 2019 was correct (transcript/19-20). The phone call was made because a report was being prepared for the Applicant’s upcoming hearing on 13 May 2019. The relevant part of the note stated (R2/454):

    Discussed – MH [mental health] – Stated his brother [the Applicant] has had ongoing mental health issues since he was 19 or 20, stated he has multiple hospital admissions in Syria and that while medicated he would at times cease medications.

    Explained his brother becomes unstable when not medicated.

    Migrated from Syria to Lebanon for further MH treatment, after the offender [the Applicant] stabbed himself multiple times (offender did not disclose this).

    Has been treated in Australia and this was arranged prior to their arrival

    Ceased medications prior to current offending

    Discussed aggression, stated he has “slapped” family members previously but explained these matters have been the most serious.

32. When asked at the hearing which family members he has “slapped”, the Applicant stated, “only my brothers” in addition to the assault against his mother (transcript/21).

33. A case note report dated 26 November 2018 written by a psychologist when the Applicant was in prison noted that he has been seen by a psychiatrist and was diagnosed with bipolar disorder with his symptoms being noted as, “manic, delusion that works for police, grandiose” and that his risks included “aggression”. The case note report later stated (R2/442):

    Inmate reported that he has been “very happy and feeling very good”. He stated he has been placed on medication that he feels is working for him and he “likes” it. He noted that sometimes he is given 2 pills and sometimes 3. He noted that he takes whatever medication that is given to him by the nurses and he is compliant. Inmate reported that since he has been taking his medication he has been feeling very good and he no longer feels angry or agitated. He stated he has no issues with his mind/thinking /mood (he did not understand what the term “mental health” means).

1. A subsequent medical report dated 10 May 2019 written by a general practitioner stated that the Applicant was “diagnosed with Bipolar affective disorder” and that: “Yes – his medical condition contributed to his offending behaviour” (R2/364).

2. An IHMS medical record made by a psychiatrist on 2 October 2019 notes that the Applicant was diagnosed with bipolar disorder in prison and that he was admitted into the prison mental health unit in December 2018 after he was “aggressive and destroying property in his cell”. It further states: “Diagnosed as being manic and psychotic”, that “he used to hear voices but not recently”, and that he has been compliant with his medications since his transfer into immigration detention (T12/78).

3. Both sentencing Judges took the Applicant’s “mental condition” into account when sentencing the Applicant on 13 May 2019 but did not mention what the condition was that they were referring to.

4. When sentencing the Applicant for the “assault with act of indecency” offence Magistrate McGowan referred to the Applicant having a “medical condition” and stated that “I hope he is taking medication for it”. She later referred to “If your client [the Applicant] has mental issues, a lot of people do, well he has to stand up and be counted and take responsibility …”. Her Honour also referred to the Applicant stating that he had not taken his medication at the time of the offence. She then stated, “I will find special circumstances due to his condition” (R2/60). I am therefore reasonably satisfied that Magistrate McGowan took the Applicant’s mental health condition into account as a mitigating factor in sentencing.

5. The Reviewable Decision also records that Magistrate Douglass “accepted that the applicant lived with significant mental illness and that he became unwell after not complying with treatment”. It further stated that there was a causal link between the Applicant’s offending behaviour and his mental condition. The Magistrate also considered that the Applicant would find it more difficult to serve a sentence of imprisonment due to his mental condition (T15/249). The sentencing assessment report for the Applicant’s 13 May 2019 sentencing for the three offences that were before Magistrate Douglass referred to the link between the Applicant’s mental health stability and his offending and that he had ceased medication prior to his offences. It referred to him being sent for mental health screening on demand when he was described as “manic” and that he had since been diagnosed with bipolar disorder and medicated accordingly (R2/371).  

6. The Applicant’s mental health issues are, on the one hand, mitigating in terms of his criminal responsibility but, as I will explain in the next section, are of concern with respect to his risk of reoffending, particularly given that the Applicant has ceased taking his medications in the past and becomes unstable when unmedicated. 

   Prospects of rehabilitation, risk of reoffending and recidivism and the likelihood of relapsing into crime

7. The sentencing assessment report prepared for the Applicant’s court date on 13 May 2019 stated that the Applicant “has been assessed at a Medium-Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)” (R2/372).

8. The report also put forward a supervision plan for if the Court considered a supervised order. The plan was (R2/372-373):

   … he will be required to report to a Community Corrections officer every 4 weeks, and receive home visits from the officer every 12 weeks.

   Community Corrections will implement the following supervision plan:

   ·     Referral to Community Mental Health to monitor mental health treatment and medication regime.

   ·     Referral for psychological treatment to address violent and aggressive behaviours.

   ·     Regular and ongoing liaison with local Police to monitor compliance with Apprehended Domestic Violence Order and to monitor victim’s safety.

   ·     Use of Practice Guide for Intervention (PGI) materials to support change and to assist [the Applicant] with managing stress and anger, managing impulsivity, communication, self-awareness and developing a prosocial lifestyle. 

9. I firstly observe that the supervision plan suggests that the Applicant requires structured support to facilitate his rehabilitation and reintegration into the Australian community. However, if the Applicant is released into the Australian community because of my decision, he will not be subject to any supervision in the community to assist him with his reintegration and rehabilitation. This is because his last sentence of imprisonment expired on 15 November 2019, and his community supervision period expired on 12 May 2021 (R2/30-31).

10. Secondly, the supervision plan also suggests that the Applicant has unmet treatment needs in several areas including violent (including domestic violence) and aggressive behaviours, consequential thinking and self-awareness, communication and developing a pro-social lifestyle. The Applicant has not, however, undertaken any rehabilitation to address his offending behaviour or any of these other treatment needs. At the hearing of this application, he confirmed that he had not attended any courses for rehabilitation and that taking his medication was enough (transcript/23). The Applicant further stated, “I swear by the cross that I will definitely take my medication and I will go to the doctor so that he can keep prescribing medication for me” (transcript/51).

11. Given the Applicant’s mental health history, the Applicant is likely to need regular structured mental health support in the community. I am concerned that there is no evidence of any support being in place, or of any plan being in place concerning the Applicant’s mental health treatment. The Applicant’s evidence was that when he was in the community, he saw a general practitioner every month and that he had also seen a psychiatrist (transcript/32). Even so, having this support in the past did not prevent him from stopping his medication and from offending.

12. There was some contradictory evidence as to whether the Applicant was taking medication at the time of his offences. For example, the Applicant also gave evidence at the hearing of this application that when he was caught with the stolen bicycles, he was taking medication prescribed by his general practitioner, but that he thought it was the “wrong” medication (transcript/31).

13. Nevertheless, the medical information that I outlined above suggests that the Applicant was properly diagnosed in prison and that his medications are effectively treating his bipolar disorder which was in remission. He has been compliant with his medication, albeit in a controlled environment. Relevantly, an IHMS medical record made by a psychiatrist on 22 July 2020 stated (T12/120):

    Stable mental state, Bipolar Disorder with psychotic features in remission but has blunted affect and some poverty of thought and some child-like behaviours possibly suggestive of executive system difficulties due to his mental illness or maybe he had a premorbid developmental disorder. He does not seem to like change which is good currently as he appears to be going fine in the institutional environment of detention and is fully compliant with his medication despite a lack of insight into his illness … Appears of low risk of self-harm.

    (My emphasis.)

14. This psychiatrist’s note raises concerns that the Applicant lacks insight into his mental illness and if he is no longer in a controlled environment, he may not be compliant with his medication.

15. I am also not satisfied that the Applicant is remorseful, and I have concerns that he lacks insight into his offending. In a written statement he said that he regretted what he did but did not remember it and felt ashamed when his family told him about it. He further stated that “I am really sorry because I hurt my family, my mother and my wife” (R2/88). However, he did not mention the indecent assault offence at all.

16. I note that the sentencing assessment report writer for the Applicant’s court date on 13 May 2019 (which did not list the indecent assault offence) thought that the Applicant was remorseful (R2/372). However, the Magistrate observed, with respect to the “assault with act of indecency” offence, that “there was no remorse” (R2/60).

17. When asked about the offending at the hearing for this application, the Applicant initially denied the offending. When pressed with further details, he then admitted to what was put to him. He did not take any personal responsibility for his offending, other than to blame his offending on not taking his medication. I also do not accept his explanation for the breach of the apprehended domestic violence restraining order protecting his wife, that an unknown woman had telephoned him stating that his wife wanted to see him. That explanation does not seem credible or plausible.

18. If the Applicant is not compliant with his medication, there is a risk of further aggressive behaviour. This was referred to in the IHMS medical record made by a psychiatrist on 2 October 2019 (referred to above), which continued (T12/80):

    -    Previously diagnosed with Bipolar Disorder. The features of psychosis would make this a Bipolar I Disorder.

    -    Self reports improved mental state and this correlates with the notes we have received from Justice Health. Nothing on his current mental state to suggest he is currently unwell. Thus his illness is currently controlled on medication.

    …

    -    Risk to self and others is currently low but note aggression was previously a feature of his mania so his risk will likely increase if he relapses again. …

    -    (My emphasis.)

19. The Applicant also has the support of his mother and brother. I note that at the First Tribunal hearing the Applicant stated that he would reside with his mother if released. His brother, who assisted him at the hearing, stated (transcript/63-64):

    … being my brother, of course, we are family, we will support him. We know about his condition. We’re always giving him his medication, even in our country. So we’re on this journey with him. So obviously, we’re going to be there to support him, and he is, after all, my brother and family is important, so yes.

    …

    … we will promise, on behalf of my brother if he comes with us, that we will really supervise him. We’ll take we’ll look after him. We’ll make sure he gets his medication. And earlier on, he said because he thought he was an individual, he can come here and do whatever he likes, but obviously, we guarantee that none of that will happen, because we, as a family, we will be there for him to back him up and support him.

20. His brother and mother’s awareness of his mental health issues and the need for him to be compliant with his medication is a protective factor, but it has not been protective in the past. The difficulties with the Applicant’s family members trying to monitor his mental health and medication are highlighted in the following statement from the Applicant’s mother (R2/89):

    I am aware of my son’s problems and issues, since I was the one who was taking care of him all the same since always. I am also aware that his medical condition is not an excuse for what he did, but I am blaming myself as well, for as a mother I had to push him harder to get his medications, but he seemed happy and stable that’s why it was too late for him when we noticed that he is back to having his usual mental health issues, like not sleeping and overthinking. To the point that he was unaware of what he was doing and where he was going.

21. Thus, the support of his mother and brother, and accommodation with his mother, may be of some assistance to the Applicant, but there is only so much they can do to monitor him and to ensure compliance with his medication. There is a possibility that even with their monitoring of him, that he could stop taking his medication again.

22. The Applicant has skills as a mechanic and that he would like to work as a mechanic if released into the community (transcript/51). Having employment is a positive factor that can assist to reduce the risk of reoffending, however, there is no evidence of any offers or possibility of employment, or how the Applicant’s mental health may impact on his ability to find or retain such employment.

23. At the hearing of this application, the Applicant stated (transcript/63):

    I’ve been here [immigration detention] for too long. I’m really fed up. I want to be with the family. I want to be out of here. I’ve been here two years - and … - a year in jail. So I just want to go out and I’ve had enough of being here.

24. I accept that the salutary effect of the Applicant’s time in prison and immigration detention, his separation from his family, and the prospect of continued separation from his family (noting that they are in New South Wales and that he is in immigration detention in Western Australia), may motivate the Applicant to take his medication and may deter him from reoffending if he is released into the Australian community. 

    Evaluating whether the Applicant is a danger to the Australian community by applying the factors in WKCG

25. The factors weighing in the Applicant’s favour, that lend support to the conclusion that he does not meet the criterion of being a danger to the Australian community, include:

    (a)He does not have a long history of offending, having only committed seven offences, with his offending taking place over approximately 15 days.

    (b)His offending includes three offences, namely two dishonesty offences involving property, and a weapons possession offence, that can be characterised as being of a lower degree of seriousness.

    (c)The Applicant was properly diagnosed with bipolar disorder in prison and is currently compliant with his medication and says that he will see a doctor and be compliant with his medication if released.

    (d)He has support from his mother, whom he can live with, and from his brother. Both are aware of his mental health issues. His brother has stated that he will make sure the Applicant takes his medication.

    (e)The Applicant has skills as a mechanic and if he can obtain employment, this may assist to make meaningful use of his time and help him to reintegrate.

    (f)His time in prison and immigration detention, and separation from his family, may provide him with motivation to take his medication and not to reoffend.

26. The factors weighing against the Applicant, that support a finding that he is a danger to the Australian community, include the following:

    (a)The sentencing assessment report prepared for the Applicant’s court date on 13 May 2019 stated that the Applicant was a Medium to Low risk of reoffending. That is not, in my view, an acceptable risk for offences involving violence and exposes the Australian community to a risk of physical and mental harm, as well as loss of life.

    (b)The Applicant has significant and longstanding mental health issues which have contributed to his offending. Although he has been diagnosed with bipolar disorder which is in remission due to his current compliance with medication in prison and immigration detention, he has stopped taking his medication in the past which can cause him to become aggressive. Stopping his medication will, according to a psychiatrist, increase the risk he poses to others. There is reference made by a psychiatrist that the Applicant lacks insight into his mental health and that he does not like change. This is concerning with respect to the risk he poses to the Australian community because his current compliance with medication is in a controlled environment and when he is outside of that environment, he has previously stopped taking his medication.

    (c)The Applicant spent a relatively short period of time in the Australian community, of approximately 18 months, before he started offending. Although the Applicant’s offences occurred over a short period of time, he has previously “slapped” his brothers and there is evidence of the Applicant threatening his wife with physical harm shortly after they were married in 2018.

    (d)Despite only offending over a short period of time, his offences were varied in nature and included three serious offences which could result in physical injuries, loss of life and/or psychological harms to members of the Australian community if repeated. These were the domestic violence offences against his former wife and mother that resulted in police applying for restraining orders to protect them and an indecent assault against a woman (who was a stranger to the Applicant) on a train. The Applicant was not deterred from assaulting his wife by the presence of her two sisters, brother-in-law, and nephew, and in fact he assaulted his brother-in-law by striking him in the face twice. His breach of the apprehended violence restraining order is also serious given that it was in place to protect his former wife and he had to travel some distance to breach it, with the knowledge that the order was in place. 

    (e)The Applicant’s conduct displays negative and disrespectful attitudes towards women (including his former wife and his mother), and he has not undertaken any rehabilitation for domestic violence.

    (f)The Applicant requires structured support to facilitate his rehabilitation and reintegration into the Australian community but does not appear to have any such support in place, including engagement with community organisations or rehabilitation providers, or a comprehensive enough plan concerning his mental health treatment.

    (g)He has not undertaken any rehabilitation to address his offending behaviour or any of his other treatment needs. Additionally, he does not think that he requires any rehabilitation, only that he needs to take his medication. However, there is some evidence that he may have been taking medication at the time he was caught with stolen bicycles, but he thought it was the wrong medication.

    (h)The Applicant appeared to lack insight into his offending and his remorse was less than fulsome.

    (i)The Applicant has had support from his family in the past, but he stopped taking his medication and offended. His family may have difficulty in ensuring that he is compliant with his medication and any mental health treatment. For example, his mother thought that his mental health issues were under control, but the Applicant had apparently stopped taking his medication before committing serious offences. 

27. After an evaluation of the factors in WKCG I find that there are reasonable grounds to conclude that the Applicant is a danger to the Australian community. I find that, (to use the language of the Tribunal which, in DMQ20, Collier J found to be an accurate statement of the law), that there is “a present risk which is “real” or “significant” or “serious”, and which is “neither remote nor fanciful”, that the person will cause harm of a sufficiently serious nature in the present or future”.

    CONCLUSION

28. For the reasons outlined above, I find that the Applicant does not satisfy the criterion in s 36(1C)(b) of the Migration Act because the Applicant:

    (a)has been convicted by a final judgment of a particularly serious crime; and

    (b)is a danger to the Australian community.

29. Further, as s 36(2C)(b) applies, I find that the Applicant also does not satisfy the criterion in s 36(2) of the Migration Act.

    DECISION

30. The Reviewable Decision, being the decision of a delegate of the Respondent dated 1 June 2022 to refuse to grant the Applicant a Protection Visa under s 65 of the Migration Act, is affirmed.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...............[Sgd]...................................................

Associate

Dated: 19 June 2023

Date of hearing:  1 November 2022

Representative for the Applicant:             The Applicant was assisted by his brother, K

Representative for the Respondent:         Mr M Hawker, Sparke Helmore Lawyers