YLHG and Minister for Immigration and Border Protection (Migration)
[2018] AATA 1454
•25 May 2018
YLHG and Minister for Immigration and Border Protection (Migration) [2018] AATA 1454 (25 May 2018)
Division:GENERAL DIVISION
File Number: 2017/6185
Re:YLHG
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member K Millar
Date:25 May 2018
Place:Adelaide
The Tribunal affirms the decision under review.
.......................[Sgd].................................................
Member K Millar
CATCHWORDS
MIGRATION - mandatory visa cancellation - criminal record - application for protection visa refused s 36(1C) of the Migration Act - Direction 75 - conviction of serious crime - decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth), s 36
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014
Criminal Law Consolidation Act 1935
CASES
AZAFQ v Minister for Immigration and Border Protection [2015] FCA 681
AZAFQ v Minister for Immigration and Border Protection (2016) 152 ALD 421
WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434, [2009] AATA 512
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148
MVLW v Minister for Immigration and Border Protection [2017] AATA 1557SECONDARY MATERIALS
Refugees Convention
Refusal of Protection Visas Relying on sections 36(1C) and Section 36(2C)(b) (Direction 75)
Refugee Law Guidelines
REASONS FOR DECISION
Member K Millar
25 May 2018
BACKGROUND
The applicant was born in Sudan, and was granted a Class XB (Refugee and Humanitarian) visa as a dependent of his mother. He came to Australia in October 2003 when he was 16 years old. On arriving in Australia the applicant attended school, but felt he did not fit in and turned to alcohol and drugs.
The applicant has committed a number of offences while in Australia. In 2010 he was convicted of five counts of aggravated assault, three counts of assaulting police and one count of aggravated assault causing harm. In 2012, he was convicted of aggravated assault with intent to cause harm. The applicant’s criminal record discloses a number of convictions for breach of bail, burglary, traffic offences, the carrying or use of offensive weapons and assault.[1]
[1] A full statement of the offences is included at appendix 1.
As a result of these offences his Class XB (Refugee and Humanitarian) visa was cancelled by the Minister of Immigration and Border Protection on 23 October 2014. The decision to cancel his visa was affirmed by the Federal Court[2] and on appeal by the Full Federal Court.[3] The Full Federal Court stated the applicant could apply for a further protection visa, as he was granted the previous protection visa as a dependent of his mother, and had not had his own claims to be a refugee assessed.[4]
[2] AZAFQ v Minister for Immigration and Border Protection [2015] FCA 681.
[3] AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105.
[4] Paragraphs [68] to [70].
The applicant applied for a Class XA (Subclass 866) protection visa on 26 October 2016. On 9 October 2017, a delegate of the Minister of Immigration and Border Protection refused the application under s 36(1C) of the Migration Act 1958 (the Act) on the basis that the applicant, having been convicted of a particularly serious crime, is a danger to the Australian community.
Subject to certain exceptions that do not apply in this case, an application can be made to this Tribunal for review of a decision to refuse to grant a protection visa under subsection 36(1C) of the Act.[5] The applicant has applied for a review of the decision to refuse to grant him a protection visa.
[5] Paragraph 500(1)(c) of the Act.
LEGAL FRAMEWORK
Section 36(1C)(b) of the Act states that a requirement for the grant of a protection visa is that the person is not a person who the Minister considers on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. As it applies in this case, s 5M of the Act defines a particularly serious crime as a serious Australian offence. The term “serious Australian offence” is defined in s 5 as an offence against a law in force in Australia where the offence involves violence against a person, a serious drug offence, or serious damage to property and is punishable by imprisonment for life, or a fixed term of not less than three years, or a maximum term of not less than three years.
Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Amending Act). The Explanatory Memorandum to the Amending Act states this provision is intended to codify Article 33(2) of the Refugees Convention which provides an exception to the principle of non-refoulement, and that a person captured by this provision will not engage Australia’s non-refoulement obligations and will not be eligible for the grant of a protection visa.
Article 33 of the Refugees Convention states:
1No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontier 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.
2The 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.
In looking at the application of s 36(1C), s 499 of the Act states that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about the performance of those functions or the exercise of those powers. Directions may not be inconsistent with the Act, and a person or body must comply with a direction issued under this section.
On 6 September 2017 the Minster issued a direction Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) (Direction 75) under s 499 of the Act.
The preamble to Direction 75 states the direction is given to any person or body having functions or powers under the Act. However clause 3 states the Direction applies to delegates who consider valid applications. This does lead to some question about whether the Direction is intended to apply to this Tribunal, or only to delegates of the Minister who consider a valid application.
In determining whether a person has committed serious offences, and is a danger to the Australian community, Direction 75 requires delegates to consider the Refugee Law Guidelines, which in turn cites relevant case law. In the circumstances of this case, it does not provide a different approach than what would follow in the usual course of events. The relevant case law includes WKCG v Minister for Immigration and Citizenship,[6] SZOQQ v Minister for Immigration and Citizenship,[7] and Vabaza v Minister for Immigration and Multicultural Affairs.[8]The requirements of s 36(1C) have also been extensively discussed by Senior Member T Tavoularis in MVLW v Minister for Immigration and Border Protection.[9]
[6] [2009] AATA 512.
[7] [2012] FCAFC 40.
[8] [1997] FCA 148.
[9] [2017] AATA1557.
In WKCG,[10] Deputy President Tamberlin stated it must first be considered whether the person has been convicted of a particularly serious offence, and then whether the person is a danger to the Australian community.[11] In looking at whether a person was a danger to the community, Deputy President Tamberlin considered the following factors relevant:
[10] [2009] AATA 512.
[11] At [29].
· The seriousness and nature of the crimes committed;
· The length of the sentence imposed;
· Any mitigating or aggravating factors;
· The extent of the criminal history;
· The nature of the prior crimes;
· The period over which the crimes took place;
· The risk of re-offending;
· The likelihood of relapsing into crime;
· The criminal record as a whole; and
· The prospects of rehabilitation.[12]
[12] At [26].
Deputy President Tamberlin went on to state that the particular offences for which the person has been convicted do not have to be causally linked to the type of danger to the community and that while, for example, the person may have been convicted of a crime of violence, the person may later be considered a risk to the community in relation to drug trafficking.[13] It is not necessary to show there is a probability of real and immediate danger of present harm as the provision is designed to protect the community both from immediate harm and harm in the reasonably foreseeable future. The expression “danger” was considered to involve a lower level of satisfaction than “probable”.[14]
[13] [29].
[14] [31].
The Full Court of the Federal Court has considered Article 33(2) of the Refugees Convention in SZOQQ.[15]The Court held that the correctness of the tests expressed in WKCG was not in issue.[16] Justice Flick observed that there is no requirement to consider the risks to be faced by the person on being returned to another country, and that what is required is a finding of fact of whether the person constitutes a danger to the community.[17]
[15] [2012] FCAFC 40.
[16] [52].
[17] [14].
In regard to rehabilitation, it was stated in Vabaza:[18]
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.
[18] [1997] FCA 148.
DECISION OF THE DELEGATE OF THE MINISTER FOR IMMIGRATION
The delegate found the applicant was a person to whom Australia owed protection obligations. In his application, the applicant claimed he could not return to South Sudan because his father fought for the Sudanese army and he will be viewed as a traitor by the South Sudanese. He has never lived in South Sudan and will be viewed as an outsider, and has no family or relatives from whom he could seek accommodation, employment or financial assistance.
The applicant is a member of the Dinka tribe. The delegate describes the conflict in South Sudan as, while having political origins, having morphed into conflict between tribes. The delegate reports that by August 2015 as a result of the conflict more than 1.6 million people had been displaced and thousands killed.[19] The delegate cites a report as recent as February 2017 that the raiding and counter-raiding between the Nuer and Dinka tribes has resulted in some of the most deadly in South Sudan and is protracted due to the inability of the state to contain armed groups, disarm civilians and monopolise the use of force with the result that large scale destruction and deaths have continued for years.[20]
[19] T1- AGS- 145.
[20] T1- AGS- 146.
The Dinka are reported to be the majority in the capital of Juba, and Juba has referred to by the Department of Foreign Affairs and Trade as a safe haven for Dinka people. However, people perceived to have a link to the Sudan People’s Liberation Army (SPLA), or who are perceived to question the authority of the government, are considered to remain at risk, particularly in the context of ongoing ethnic tensions.[21]
[21] T1- AGS 149-150.
As a result, the delegate considered the applicant was a person to whom Australia owed protection obligations as contemplated by the Act.
The delegate then found that the applicant had been convicted by final judgment of a particularly serious crime in Australia, and there were reasonable grounds on which to consider he is a danger to the Australian community.
The first set of offences to which the delegate had regard relate to an incident in which the applicant and his brother chased a house guest several blocks down the street and struck him in the head with a baseball bat resulting in him suffering a fractured skull. While the applicant’s brother stuck the blow, the sentencing judge did not distinguish between the applicant and his brother in terms of culpability. The second set of offences are referred to as “violent offending” including assault of passengers on a bus and assault of police. The third set of offences are referred to as violent and non-violent offences for dishonesty, disorderly behaviour, property damage, weapons offences, driving offences and breaches of judicial orders.
The delegate noted that regard was taken of the applicant’s difficult childhood in Sudan, his childhood experiences of family dislocation, violence, racism and persecution, and his difficulty settling in to Australia which contributed to his abuse of drugs and alcohol. The delegate noted that the applicant was found to meet the diagnostic criteria for an adjustment disorder with mixed depressed mood and disturbance of conduct. He was found to have a high risk of re-offending when sentenced in 2012. The delegate took into account his breach of a number of orders of the court. The applicant had returned positive results to drug testing in prison, and was largely unsuccessful in his attempts at rehabilitation and abstinence in the community.
The delegate noted the strong support of family members and some community support, the applicant’s stated willingness to undertake programs in the community and to complete welding qualifications. The delegate had regard to the rehabilitation courses the applicant had undertaken while in prison and his remorse, but found that he is a danger to the Australian community and refused his application for the visa under s 36(1C) of the Act.
THE APPLICANT’S MOTHER
The applicant’s mother provided a statement and a statutory declaration in relation to the cancellation of the applicant’s visa. She also travelled to Adelaide to give oral evidence at the hearing of this application.
The applicant’s mother said that when they were granted the visa the children were young and did not understand the difference between life in Sudan and in Australia. She considers the applicant had difficulty adapting to life in Australia and this is why he ended up in prison. When he started getting into trouble the applicant was living with her.
As the applicant has been in prison since 2010, she has not been able to spend much time with him. He did stay with her when he was released on bail but did not comply with the conditions of his bail and left the house which made the police arrive. She visited him while he was in prison, and believes prison has changed him as he was in prison for a long time. She believes he will not drink again because this is what he has told her.
THE APPLICANT’S SISTER
The applicant’s sister provided a written statement for the purpose of the consideration of his visa cancellation and gave oral evidence at hearing.
His sister stated that she is fearful for her brother’s safety if he returned to Sudan. She said she strongly believed her brother would not relapse into crime and is not a threat to the Australian community now that he has served his time in prison and detention. She said she understood the magnitude of his crimes but he had paid for them, and has had to deal with the consequences of being locked away. She said in her communication with the applicant he has been remorseful and is a reformed individual. He has been involved in rehabilitation and counselling.
The applicant’s sister was eight years old when they came to Australia and 15 years old when he went to prison. She has not seen him since. She has visited him in prison approximately 10 times and says she has contact with him over the phone and through social media two to three times a week.
On cross-examination, she said her belief that he would not be a threat comes from speaking to him as he reminisces about the times before he made mistakes and speaks about what he wants to do in the future. It also arises from the various programs he has been involved in and he has said counselling has been very effective for him and has allowed him to look at the situation from a fresh perspective.
CONSIDERATION
Section 36(1C)(b) involves a consideration of whether it is considered the applicant has been convicted by final judgment of a particularly serious crime and whether it is considered, on reasonable grounds, that he is a danger to the Australian community.
HAS THE APPLICANT BEEN CONVICTED OF A PARTICULARLY SERIOUS CRIME?
The applicant has an extensive criminal history, however there are two sets of offences that are more significant and give rise to whether he has been convicted by final judgment of a particularly serious offence.
The first set offences are three counts of assaulting police and five counts of aggravated assault. Under subsection 20(3) of the Criminal Law Consolidation Act1935 (SA), the maximum penalty for aggravated assault is imprisonment for three years. The applicant pleaded guilty to these charges.
The second set of offences included aggravated unlawfully causing harm with intent to cause harm. The offence was aggravated because he committed it in the company of his brother and because an offensive weapon, being a baseball bat, was used. Under s 24(1)(b) of the Criminal Law Consolidation Act1935 the maximum penalty for an aggravated offence of causing harm is imprisonment for 13 years. The applicant was found guilty by a jury of these charges, and has not appealed his conviction.
Both set of offences have involved a conviction by final judgment and are offences involving violence against a person. Both meet the requirement for the maximum penalty to exceed three years.
As a result the applicant has been convicted by final judgment of a particularly serious offence.
IS HE A DANGER TO THE AUSTRALIAN COMMUNITY?
The applicant asserts he is not a danger to the community as he knows he will not offend again as he has been in prison or immigration detention since 2011, and he does not want to be in detention again. He says his problems are due to alcohol and that now he is nearly thirty he wants to look after his mother and have his own family.
In considering whether the applicant is a danger to the Australian community, the Tribunal considered the factors proposed by Deputy President Tamberlin, as well as other matters raised on the information available to it, and by the applicant.
Seriousness and nature of crimes committed
The applicant’s statutory declaration dated 2 January 2014[22] states he was first imprisoned for assault in in 2006.
[22] Exhibit T2 p 5-11.
On 9 March 2012 in the District Court of South Australia the applicant was found guilty by a jury of aggravated unlawfully causing harm with intent to cause harm. The sentencing remarks state that the victim was a guest who had come to visit the applicant and his brother. In the course of the afternoon the group became intoxicated and the applicant’s brother started to pester the victim to fight with him. When the victim sought to leave the applicant and his brother pursued him several hundred meters, caught him and the applicant’s brother hit him on the head with a baseball bat, causing a fractured skull. The risk of re-offending was stated to be high, and the applicant was said to lack insight into the role of alcohol in his behaviour. It was also stated that the applicant was quick to anger if he feels slighted due to the racial vilification he claims he suffered in Sudan, Egypt and Australia.
On 20 July 2010 in the Adelaide Magistrates Court the applicant was sentenced for three counts of assaulting police and five counts of aggravated assault. The charges of assaulting police resulted from police attending a disturbance at Adelaide Railway Station on 4 October 2009. The assaults occurred on 17 October 2009 in the course of a bus journey where the applicant was drunk and in the company of his younger brother and a friend. Two other passengers asked them to be quiet, and the applicant responded with violence, punching five passengers. Four passengers did not have serious injuries, and the fifth suffered a cut to his face and a blood nose. The Magistrate stated the applicant’s behaviour must have been terrifying for those people and his behaviour was completely unacceptable.
In the time since these offences were committed the applicant had been arrested for breaching bail, behaviour offences and property damage. The Magistrate regarded it as relevant to the penalty imposed for the charges that the applicant had failed to comply with any measures imposed by police, or the court, to stop him re-offending. The Magistrate took into account the racism and persecution the applicant said he had experienced, that the applicant felt out of place in the Australian community, and that this led to his use of marijuana and alcohol. It was found that as the applicant did not have a mental illness, and that because of his alcoholism and cultural issues, he would be a person who could be rehabilitated and a shorter than usual non-parole period was set.
Both sets of offences are serious and involve violence to others. The sentencing remarks for both sets of offences refer to the applicant’s recourse to violence if he feels slighted because of his race.
Length of any sentence imposed
The applicant was imprisoned in 2010, and since then has been either been in prison or in immigration detention. He said he had also been in prison prior to 2010 three of four times before, but could not give an exact number of times. In 2010 he was sentenced to 12 months and 21 days for aggravated assault, assault police and commit assault causing harm.
On 9 March 2012 he was sentenced to four years and four weeks imprisonment for intentionally causing harm and breaching a suspended sentence.
The applicant said he has learned that time in prison was a waste, and he does not want to go back to prison again. He says he has grown up and will do better, and intends to do good things. He said he has had help through the prison, and things he had learned through prison will make him a better person.
The applicant has been subject to lengthy periods of imprisonment, and in particular the last offence he committed resulted in a term of imprisonment of four years. Additional time was added due to breaching a suspended sentence.
Mitigating or aggravating factors
The applicant grew up in Sudan and was raised by his mother who was a traditional Sudanese Dinka singer. They struggled to survive and he and his brother would sell plastic bags at the market. He said mother was arrested because she was accused of singing songs in support of the South Sudanese rebels.
The applicant says he has a suffered a great deal from discrimination since arriving in Australia. For example, he said once while waiting for a bus a car drove past and a group threw eggs at him. He had to return home, and did not go out again because he was so angry. He said he would be stopped by police if he has running and asked why he was running when he was trying to catch his bus. He said he is constantly judged. He said he did not know he would be called names in Australia and that it would be hard to fit in, as he thought Australia was a country with opportunities and equality, but he did not see this when he arrived. He did not feel welcome and did not feel comfortable and this resulted in him drinking. He says he has learned to accept this, and that if he takes action he will end up in prison. He said if he has to take whatever people throw at him without responding, he will do that for his own good.
The applicant says he has struggled to this day, and has been treated worse than a terrorist. He said from the time he arrived when he was 16 until the first offence when he was 18 he felt the racism all the time and it built up.
In regard to the offence of intentionally cause harm, he said the person who was injured had knuckle dusters and had hit his brother and knocked him unconscious. He said he looked down the stairs and could see his brother unconscious.
The applicant states discrimination was a big factor in his offending, as was alcohol. He said he had a lot of difficulty talking to anyone about his problems, and lost hope for life. It was difficult for him to find a job and these struggles led him to drink and do bad things to other people. He states he has now decided to let go of anger and start a better life.
The applicant said he was homeless for a few weeks because he was not living with his mother. His mother said he lived with her until 2008 and was given a government house in 2010, but then went to prison. He lived with his mother at times when he was on bail, but would leave the house and this would send an alarm to the police officers who would come to the house and call them names.
The applicant states he was very young and this led to his crimes. However the offences he committed span a period where he was between the ages of 18 to 26 years old. As the more serious offences were committed towards the end of this period, I do not consider his youth a mitigating factor.
The applicant has been before the courts and imprisoned on a number of occasions, yet states he has not been given an opportunity to prove himself in the community. He has been provided with a number of opportunities to change his behaviour in the community, however the severity of his offending has increased over time. This has included a period when he was living with his mother as shown by his failure to comply with conditions of his bail at this time. Despite his claims to have been young at the time the offences were committed, the more serious offences were committed when he was older, and have occurred in the company of his younger brother and while under the influence of alcohol.
The criminal history in totality
The applicant has an extensive criminal history over a considerable period of time.
Nature of the prior crimes
The applicant said he has acknowledged the seriousness and the nature of his crimes. He says he is sorry and would not do it again. He said of all the crimes he has committed, he had not killed anyone or he would have been in prison for the rest of his life. He said he is “so grateful God hasn’t let him commit a serious crime”. He states he would not take another person’s life and does not want to participate in violence again. He believes he will not drink alcohol anymore.
This does not indicate that the applicant has faced the gravity of his offending, the risk to others of his behaviour, or the affect his violence towards others had on members of the community.
Period over which the crimes were committed
The applicant’s history of offending spans the period 2005 to 2012. It commenced approximately three years after he arrived in Australia and continued until he was imprisoned.
Risk of re-offending/likelihood of relapsing into crime
While the applicant states he fell in with the wrong crowd and people that were a bad influence on him, both of the serious offences of which he has been convicted were committed in the company of his brother. As he states his family is important to him, I consider it likely he would continue to be in the company of his brother and that, on the basis of his past pattern of behaviour, this increases his risk of re-offending. He failed to comply with conditions of his bail while living with his mother, and while living with his mother would provide stability, I do not consider it acts as a restraint on this behaviour.
Of greater concern is his response to perceived discrimination, which is stated to be a precursor to the more serious crimes, and which he considers he continues to suffer while in detention and would continue to suffer in the community. In the context where his continued abstinence from alcohol on being released from custody is untested, it is this response that leads to the greatest risk of re-offending.
Prospects of rehabilitation
The applicant has completed, partially completed or attended the following courses:
· Positive Lifestyle Program, a 10 session one on one mentoring program which has subjects of self-awareness, grief and loss, anger, problem solving, depression, assertiveness, stress, self-esteem, loneliness and goal setting. He completed this course 15 April 2015;
· Partially completed Certificate 1 in Education and Skills Development – units completed are: identifying literacy skills requirements (24 March 2015), identifying numeracy skill requirements (10 July 2015), using simple addition and subtraction (17 January 2013), developing preliminary reading skills (13 December 2012); and
· Violence Prevention Program with units in core beliefs and problem thinking, communication skills, mindfulness, emotion management, distress tolerance, and relationship skills this was completed in the period October 2013 to June 2014.
He has a reference from the Chaplaincy Services of the Salvation Army, which facilitates the Positive Lifestyle Program at Mobilong Prison. The reference states the applicant has been punctual to sessions, has shared openly and had given 100% in his sessions. It states the applicant presents as an honest and sincere person who has learned to become a survivor in difficult situations. The applicant is reported to bring hope and calm to his peers and people like to be around him.
The applicant stated he had started a drug and alcohol course before he was imprisoned but was not able to complete it. He states he has no intention of drinking again and he has not had any alcohol for almost seven years, and does not want to drink again because it gets him into trouble.
The applicant has completed courses in prison through which he says he has learned to communicate with people and get help, and he did not have these skills before he committed the offences. He says he likes the idea of rehabilitation and will participate. He says he has learned from previous rehabilitation courses and is willing to learn more and better himself.
The applicant stated he now knows how to deal with problems without violence. The applicant has the support of his mother and his sister, who attended the hearing and gave evidence.
The applicant states that if released he will finish his studies and get a job and will always be busy so that he will not have time for drinking. He states prison made him realise that he has taken a lot of things for granted.
The difficulty with his reunification with his family is that this is a two-edge sword. He has the support of his mother and his sister. He states he has cut ties with people he used to drink with and is no longer friends with them. However his desire to be with his family would also include his brother. Both sets of offences were committed in the company of his brother, who is currently also detained. If reunited with his brother, based on their previous history, there is a higher risk he will re-offend. His ability to abstain from alcohol and drugs in the community is untested.
Other Matters
Further information on the applicant’s conduct while in prison and in immigration detention was sought, as the most recent information on his conduct was from 2012. The Minster provided records summonsed from the Department of Justice and records held on the applicant’s behaviour while in immigration detention.
The Minister submitted that these records showed the applicant’s conduct in prison was poor, he had returned positive drug tests, was involved in an assault, and was placed in management cell to control his behaviour on one occasion. The majority of these incidents were in September and October 2015.
The Minister submits that while the applicant’s conduct in immigration detention has generally been satisfactory there have been incidents of aggression towards others. The applicant objected to the inclusion of a reported sexual assault by him on another detainee. There were no changes laid, and I did not have any further regard to this report.
However as recently as December 2017, the applicant was reported to have refused to have his room searched, and as having smashed several plates. This does not support the applicant having regained a level of control that would mean that he is not a danger to the community. While being imprisoned and in immigration detention leads to a level of friction between people, and the environment is different from being in the community, these records do not support that his approaches to authority or to perceived discrimination have significantly altered.
The applicant repeatedly stated he is not a danger, and came across as being angry that it was alleged he is danger to the Australian community. He said he feels bad about the pain caused to his family and the victims and the Australian community, but this is later qualified by statements that he is not and has never been a danger to the Australian community and has never killed anyone. Repeating that he is not a danger, and expressing his displeasure at being considered a danger to the Australian community, does not show the applicant has actively engaged with the serious nature of his offending or shown genuine remorse that would lead to him responding differently in the future.
The applicant said if he was given the opportunity he would like to prove how he would be in the community. He has now been in prison or in immigration detention since 2010, and his behaviour were he to be released is untested. In so far as his previous behaviour is an indication of how he would behave in the future, the applicant was given a number of chances in the past and but did not change his behaviour. As this is now some time ago, the degree to which this past behaviour predicts his future behaviour can be relied on to a lesser extent.
Conclusion
The gravity of this decision cannot be understated. The applicant has been found to otherwise be a person to whom Australia would owe protection obligations.
While, as stated in SZOQQ v Minister, the Act does not require a balancing exercise to be undertaken, the real risk to the applicant on being sent to South Sudan means that the legislation must be applied with appropriate rigour having regard to the gravity of the outcome for the applicant.
However, the test to be applied is that the applicant is not a person who the Minister considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. The applicant has been convicted by a final judgment of a particularly serious crime, and what must be decided is whether it is considered on reasonable grounds that he is a danger to the Australian community.
In so far as his past behaviour shows how he will address matters in the future, the applicant has an extensive criminal history and in the past he has resorted to carrying weapons, assaulting others and assisted his brother to seriously injure another person.
The applicant asserts he will not use alcohol when released, and attributes his offending to the use of alcohol. He states that the courses he did in prison included units on the use of alcohol, although this was not specified in the certificate. His ability to abstain from alcohol in the community is untested. While I do not doubt he is highly motivated to avoid any further imprisonment, his ability to abstain from alcohol and drugs and to manage his anger is untested.
On his release the applicant would live with his mother, which did not previously prevent him from re-offending when he was on bail.
The applicant initially attributed his offending to his use of alcohol, however further exploration elicited his concerns about discrimination. He believes he is continuously discriminated against because of the colour of his skin, and that this leads to problems for him. The assault on the bus resulted from this perceived discrimination.
It would not be realistic to say that this discrimination does not occur in the Australian community, or that the applicant has not experienced discrimination. However it is the applicant’s readiness to attribute adverse events as discrimination and his reaction to perceived discrimination that remains a problem. He feels aggrieved by his detention and his treatment by the Australian community. Given in the past he has resorted to carrying weapons, in assisting his brother in assault and seriously injuring another person, it is his sense of having been aggrieved and discriminated against that results in him being a danger to the Australian community even in light of his abstinence from alcohol in the latter stages of his imprisonment and in while in detention.
As applicant has been convicted by final judgment of a particularly serious crime and is a danger to the Australian community, the requirements of s 36(1C)(b) are not met and the decision to refuse his visa is affirmed.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 85 (eighty five) paragraphs are a true copy of the reasons for the decision herein of Member K Millar
......................[Sgd]..................................................
Administrative Assistant
Dated: 25 May 2018
Date(s) of hearing: 18 & 19 December 2017, 15 March 2018 Applicant: In person APPENDIX 1
Court Date Offence Outcome 09 Mar 2012 Breach of Suspended Sentence Imposed
01 Sep 2009Intentionally Cause Harm – Aggravated Offence
Breach proven. Suspended Sentence
re-instated
Imprisonment for 4 weeks cumulative.Imprisonment for 4 years 4 weeks. Non-parole period of 3 years and 3 months
20 Jun 2011 Fail to Comply with Bail Agreement Convicted. No penalty imposed 20 Jul 2010 Commit Assault - Aggravated Offence
(5 Charges)Assault Police
(3 Charges)Commit Assault Causing Harm – Aggravated Offence
On all charges: Imprisonment for 12 months and 21 days 20 Jul 2010 Disorder Behaviour
(2 Charges)Damage Building or Vehicle
Fail to Comply with Bail Agreement
(7 Charges)Loitering
Fighting
State False Personal Detail
Resist Police
On each charge: Convicted. No penalty imposed
24 Sep 2009 Fail to Comply with Bail Agreement
(4 Charges)Use or Threaten Unlawful Violence
Disorderly Behaviour
Fail to Comply with Bail Agreement
(2 Charges)Loitering
On all charges: Convicted. Fined $400
On each charge: Convicted. No penalty imposed
01 Sep 2009 Disorderly Behaviour
Fail to Comply with Direction to Leave Vehicle or Premises
Loitering
Hinder Police
Commit Assault
Aggravated Use of Offensive Weapon
Fail to Comply with Bail Agreement
(4 Charges)Carry Offensive Weapon
On each charge: Convicted. No penalty imposed
On all charges: Imprisonment for 4 weeks. Sentence Suspended. Released on entering Bond $200 to be of Good Behaviour for 12 months
12 May 2009 Fail to Comply with Bail Agreement
Convicted. No penalty imposed 02 Jan 2009 Fail to Comply with Bail Agreement
Convicted. No penalty imposed 24 Oct 2008 Damage Property
Fail to Comply with Bail Agreement
Trespassing
Convicted. Fined $350 Aggravated Offence
22 Aug 2008 Commit Assault
Fail to Comply with Bail Agreement
Fail to Comply with Bail Granted Agreement
Carry Offensive Weapon
Consume Liquor in Public Place
Disorderly Behaviour
On both charges: Convicted. Fined $250
Convicted. Fined $200
On both charges: Convicted. Fined $175.
22 Aug 2008 Refuse to State Name and Address
Carry Offensive Weapon
Disorderly Behaviour
(2 Charges)Offensive Language
On each charge: Convicted. No penalty imposed 19 Mar 2008 Disorderly Behaviour Convicted. Fined $400 03 Mar 2008 Estreatment of Bail Found proved. Estreatment $500 28 Feb 2008 Estreatment of Bail Found proved. Estreatment $1,000 06 Jul 2007 Fail to Comply with Bail Agreement Without conviction. Proved. No penalty imposed
21 Mar 2007 Estreatment of Bail Found proved. Estreatment $800 12 Apr 2006 Assault Police
Resist Police
On both charges: Without Conviction. Released on entering Bond $750 to be of Good Behaviour for 12 months
07 Mar 2006
19 Jan 2006
Drive Under the Influence
Drive at Dangerous Speed
Fail to Comply with Request to Stop Vehicle
Unauthorized Person Drive Vehicle
Drive Vehicle Without Consent
(2 Charges)Disorderly Behaviour
At the date of issue. This charge has not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above
Convicted. Fined $300
Licence disqualified for 12 monthsWithout Conviction. Released on entering Bond $300 to be of Good Behaviour for 12 months. Licence disqualified for 12 months
Without Conviction. Proved with no penalty imposed
16 Sep 2005 Burglary
Unlawful Assault
Without Conviction. Adjourned to be of Good Behaviour for 12 months
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