YYTF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 190
•28 January 2022
YYTF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 190 (28 January 2022)
Division:GENERAL DIVISION
File Number: 2021/1373
Re:YYTF
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:28 January 2022
Place:Sydney
The Reviewable Decision of the delegate of the Respondent dated 11 February 2021 to refuse the Applicant a Class XA subclass 866 Permanent Protection visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.
......................................[sgd]..................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – Class XA subclass 866 Permanent Protection visa – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether Applicant is a danger to the Australian community – decision affirmed.
LEGISLATION
Crimes (Sentencing Procedure Act) 1999 (NSW)
Migration Act 1958 (Cth)Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
CASES
BHYK v Minister for Immigration and Citizenship [2010] AATA 662
DOB18 v Minister for Home Affairs (2019) 269 FCR 636
FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1513
HKW and Minister for Home Affairs [2019] AATA 4393
HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1967
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
KQBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2917
LKQD and Minister for Immigration and Border Protection [2018] AATA 2710
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Nolan and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1035
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
RVJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. (Migration) [2020] AATA 665
SHXZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1992
SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1515
SQDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2980
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
TDPG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 503WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434
SECONDARY MATERIALS
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth).
REASONS FOR DECISION
Senior Member Linda Kirk
28 January 2022
BACKGROUND AND REVIEW APPLICATION
YYTF (‘the Applicant’) is a 47-year old citizen of Iraq born in January 1975.[1] He arrived in Australia with his family in August 1995 as the holder of a Class BA Subclass 202 Global Special Humanitarian (permanent) visa (‘the visa’) granted to him in June 1995.[2]
[1] T2, 6.
[2] Ibid.
The Applicant was convicted of numerous criminal offences in the period from January 1998 to December 2016 detailed in [24] - [57] below.
On 19 December 2007 the Applicant was issued with a Notice of Intention to Consider Cancellation of the visa under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’). On 3 March 2009 a decision was made not to cancel the visa.
On 9 March 2007, the Applicant’s Class BA Subclass 202 Global Special Humanitarian (permanent) visa was cancelled under sub-s 501(3A) of the Act.[3] He was detained by officers of the Department on 24 April 2017 following his release from the custody of New South Wales.
[3] T19, 135 [21].
On 9 January 2018, the Applicant applied for a Class XA subclass 866 Permanent Protection visa (‘protection visa’).[4]
[4] Ibid 135 [22].
On 14 March 2019, a delegate of the Minister (‘the Respondent’) refused to grant the Applicant the protection visa on the basis that she was not satisfied that he was a person in respect of whom Australia has protection obligations, without assessing the exclusion criteria.[5] The Applicant sought review of this decision in the Migration and Refugee Division of the Tribunal.[6]
[5] T7, 59-82.
[6] T9.
On 5 February 2020, the Tribunal found that the Applicant had a well-founded fear of persecution on the basis of his status as a Sunni Turkmen male of fighting age, who originates from Kirkuk, a formally ISIS-held area of Iraq.[7] The Tribunal remitted the decision to the Department with a direction that the Applicant satisfies sub-s 36(2)(a) of the Act.
[7] T19, 133-157.
On 11 February 2021, a delegate of the Respondent found that the Applicant met the refugee criteria in sub-s 36(2)(a) and the complementary protection criteria in sub-s 36(2)(aa) of the Act.[8] However, the delegate found that the Applicant had been convicted of a ‘particularly serious crime’ and was a ‘danger to the Australian community’.[9] Consequently, the delegate refused to grant the Applicant a protection visa, on the basis that he was ineligible because he did not satisfy either sub-s 36(1C)(b) and 36(2C)(b)(ii) of the Act (‘Reviewable Decision’).
[8] T2.
[9] Ibid.
On 8 March 2021, the Applicant applied to the Tribunal pursuant to s 500(1)(c)(i) of the Act for review of the Reviewable Decision.[10]
[10] T1.
The application was heard by the Tribunal on 21 September and 12 October 2021. The Applicant attended the hearing by video-conference from Christmas Island Immigration Detention Centre. The Applicant was self-represented and gave oral evidence and was cross-examined at the hearing. Dr Gosia Wojnarowska, Consultant Psychiatrist, gave oral evidence at the hearing.
The following documents were before the Tribunal:
· Respondent’s Statement of Facts, Issues and Contentions dated 25 August 2021
· Section 37 T-Documents (T1-T30, pages 1-647)
· Supplementary T-Documents (ST1-ST3, pages 648-668)
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
REFUGEE CONVENTION AND LEGISLATIVE FRAMEWORK
Australia is a signatory to the 1951 Convention relating to the Status of Refugees (‘the Refugee Convention’), to which it acceded on 22 January 1954.
Article 33 of the Refugee Convention provides:
Article 33 prohibition of expulsion or return (“refoulement”)
1No 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.
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 judgment of a particularly serious crime, constitutes a danger to the community of that country.
Section 36 of the Act relevantly provides:
Protection visas – criteria provided for by this Act
(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).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(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
(c)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b) see section 5M.
Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) and was intended to codify Art 33(2) of the Refugee Convention.[11]
[11] See sch 5, pt 2, item 9 of the Amending Act and Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth).
Under s 5M of the Act, a ‘particularly serious crime’, as that term is used in s 36(1C)(b), is defined as follows
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.
Section 5 of the Act relevantly provides a definition of ‘serious Australian offence’:
‘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.
ISSUES
The issues that require determination are whether the Tribunal considers, on reasonable grounds, that:
1)the Applicant has been convicted by a ‘final judgment of a particularly serious crime’; and
2)the Applicant is ‘a danger to the Australian community’.
EVIDENCE BEFORE THE TRIBUNAL
Background and family
The Applicant was born in Kirkuk in 1975 in north-eastern Iraq. He is an Iraqi citizen and identifies as Turkmen. Both his parents were born in Iraq. His mother is Kurdish and his late father who died in 1989 was Turkmen. The Applicant speaks, reads and writes Turkmen and Arabic, speaks English and he is 30 percent fluent in Kurdish.[12]
[12] T9, 135.
The Applicant and his family fled Iraq in 1990 because of the war, the government regime and because the Kurdish people were going to kill him and his family.[13] They travelled by foot from Iraqi Kurdistan to Turkey where they stayed for five years. He arrived in Australia with his mother and several of his siblings on 31 August 1995.[14] The Applicant struggled to adjust to life in Australia, he was unable to speak English and secure a job. He missed his home country and remaining siblings and he became depressed.[15]
[13] Ibid 137.
[14] Ibid 136.
[15] ST2, 658.
The Applicant’s mother is living in NSW. The Applicant has nine siblings. Four of his sisters are living in NSW with their families. He has three brothers in Australia, two of whom are married and one who is single. He has two brothers who are living in Germany.[16]
[16] T9, 135.
Prior to leaving Turkey, the Applicant worked in various jobs including in a café and department store.[17] He was trained as a carpenter in Iraq, but he could not practise his trade in Australia as he lacked the necessary communication skills to do so.[18] He undertook some English training at TAFE in Australia and he has worked in various jobs, including at food markets, a kebab shop, as a delivery driver and as a carpark attendant.[19]
[17] Ibid 137.
[18] ST2, 659.
[19] T9, 137; ST2, 659.
Criminal offending
On 4 January 1998, the Applicant was charged with Assault occasioning actual bodily harm and Common assault, both offences having been committed on 4 January 1998 and 2 January 1998 respectively.[20] On 13 January 1998, the Applicant failed to appear in the Burwood Local Court.[21] Bench warrants issued for his arrest on 28 April 1998.[22]
[20] T21, 198.
[21] Ibid 199.
[22] Ibid 198.
Armed robbery with an offensive weapon
On 6 October 1998, the Applicant committed an armed robbery on a train bound for Cabramatta.[23] At the Sefton railway station, he approached the female victim, who was the only other occupant of the carriage, and produced a folding knife with a blade extended.[24] He held the knife to victim, and demanded property from her.[25] The victim handed over $10, a Motorola mobile telephone and a gold ladies watch.[26] The Applicant was arrested by New South Wales Police later that day in possession of the stolen property.[27]
[23] T23, 225.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Ibid.
During his oral evidence at the hearing, the Applicant told the Tribunal that he committed this offence because he wanted to help his brother who had lost both his legs during the war.[28] He was hoping that his victim might have had a larger sum of money on her, for example, $1,000. The Applicant told Dr Gosia Wojnarowska, Consultant Psychiatrist, that he had no means of earning money as his English was limited. He attempted to borrow money from his friends, but they refused. He was smoking cannabis heavily at this time.[29]
[28] Transcript of Proceedings (21 September 2021) 17; T25, 233.
[29] ST2, 656.
On 7 February 2000, the Applicant was convicted in the Sydney District Court of the offence of Armed robbery with an offensive weapon that he committed on 6 October 1998. He was sentenced to a minimum term of 18 months’ imprisonment, to commence from 16 January 2000, with an additional term of two years, being a total effective sentence of three years eight months’ imprisonment.[30]
[30] T23, p 229. See also T21, p 175.
In his sentencing remarks of Chief Justice Blanch stated:
It is obviously a very serious matter and a matter in respect of which a prison sentence must be imposed …
The question arises as to why a young man without a prior criminal history would commit such a serious offence …
it is my duty when sentencing someone for a serious offence such as this to give due weight to the principles of general deterrence and in spite of the fact that he has never been to gaol before nor been in trouble before, a gaol sentence is inevitable.[31]
[31] T2, 24.
Chief Justice Blanch did not accept that the Applicant was motivated by assisting his brother when he committed the offence. He quoted an extract of a pre-sentence report prepared by a psychologist which stated:
It is possible that he may have been depressed due to missing his older brothers, and being concerned for their wellbeing … However, in view of the information provided by his mother, I find it hard to accept that his motivation to commit the robbery was a desire to obtain money to send to his older brother.[32]
[32] Ibid 26.
Travel and public place offences
On 15 June 1999, the Campbelltown Local Court convicted the Applicant of the offence Fail to comply with direction committed on 21 May 1999 and imposed a financial penalty in the sum of $100.[33]
[33] T21, 199; T20, 161.
On 9 December 1999, the Burwood Local Court convicted the Applicant of four offences arising from an interaction on or near a train on 19 November 1999, as follows:
Offence
Sentence
Travel on train using invalid travel pass
$100 fine
Use offensive language in/near public place
$200 fine
Resist officer in execution of duty
$200 fine
Intimidate police officer in execution of duty without actual bodily harm
$400 fine
On 2 March 2000, the Burwood Local Court ordered that the Assault occasioning actual bodily harm, Common assault and breach of bail charges from January 1998 be taken into account under the Form 1 procedure in the Crimes (Sentencing Procedure Act) 1999 (NSW) by the District Court.[34]
[34] T21, 199.
On 15 September 2001, the Applicant was released from the custody of the State of New South Wales on a parole order.[35] The parole term was to expire on 15 September 2003.[36]
[35] Ibid 176.
[36] Ibid 175.
Aggravated stealing
On 23 March 2003, the Applicant was charged with a number of offences arising from a robbery he committed on 22 March 2002.[37] He was remanded in custody until he was released on bail on 7 May 2002.[38] On 20 May 2004, the Applicant was convicted in the Parramatta District Court of Aggravated stealing from a person and sentenced to two years’ imprisonment, suspended for two years, on condition that he enter a bond with supervision and programme requirements.[39]
[37] Ibid 200.
[38] Ibid 176.
[39] Ibid 201; 187-188.
The sentencing remarks of Judge Charteris set out the facts of this offence.[40] The Applicant stole a pair of sunglasses from the head of a female victim, following which the victim grabbed the Applicant’s hat/cap.[41] He then hit the victim twice in the face and ran off with her sunglasses.[42] The victim suffered no injury during the commission of the offence other than a scratch to her face.[43] The Applicant was asked about this offence during cross-examination. He said that he was in a relationship with the victim and her sunglasses fell off and he tried to pick them up.[44]
[40] Ibid 187.
[41] T21, 188. See also NSWPOL Facts Sheet at T27, 239-241.
[42] T21, 188.
[43] Ibid.
[44] Transcript of Proceedings (21 September 2021) 19, 23.
Drug offences
On 5 August 2004, the Applicant was convicted in the Downing Centre Local Court of Possess prohibited drug on 17 June 2004.[45] He was sentenced to a fine of $1,000.
[45] T21, 204; T20, 160.
On 25 October 2004, the Applicant was convicted in the Parramatta Local Court of the offences Carry cutting weapon upon apprehension and Possess prohibited drug committed on 19 October 2004.[46] He was sentenced to financial penalties of $250 and $300, respectively.[47] On 16 December 2005, the District Court decided to take no action in respect of the Applicant’s breach of the suspended imprisonment order imposed in May 2004, on the basis of that re-offending.[48]
[46] Ibid; T20, 160.
[47] T21, 204.
[48] Ibid 201.
Malicious wounding
On 7 September 2006, the Applicant was charged with Maliciously inflicting grievous bodily harm with intent and Assault occasioning actual bodily harm, alleged to have been committed on 24 January 2006.[49] On 4 May 2007, the Applicant was convicted in the Parramatta District Court, after a trial by jury, of the lesser offence of Malicious wounding.[50] The assault offence was dismissed by the trial judge, her Honour Judge Quirk.[51] The Applicant was sentenced to three years’ imprisonment, and ordered to serve the two year term that had been suspended by his Honour Judge Charteris in the District Court in May 2004 for the Aggravated stealing offence.[52] The sentence for Malicious wounding was ordered to be served partly cumulatively upon the breach term, such that the total effective sentence imposed on the Applicant was three years and six months’ imprisonment.[53]
[49] T2, 24, 26-28.
[50] T21, 179.
[51] Ibid 195.
[52] Ibid 194.
[53] Ibid 195.
The facts of the Malicious wounding offence were set out in the sentencing remarks of Judge Quirk dated 10 August 2007.[54] The Applicant was outside the Centrelink office in Auburn. There was an angry discussion between the Applicant and a man, A, about an alleged rape of a female by the Applicant some years prior. After the Applicant tried to walk away, A pursued the Applicant. There was a scuffle and A kicked the Applicant. In the fight that ensued between A and the Applicant, A sustained a 2-3 cm wound in the right side of his chest under the armpit and suffered a puncture to his lung cavity. After injuring A, the Applicant ran away.
[54] Ibid 180-187.
Judge Quirk made the following comments about the seriousness of the Applicant’s offending:
In the circumstances I accept that the objective seriousness is not as high as that propounded by the crown. There was some provocation of the offender and whilst he was carrying a knife as he apparently often did his resort to its use was not premeditated but more of a reaction to the circumstances. There is no excuse for the carrying or use of a knife and the offender had had charges of possession or carrying a knife or an offensive weapon brought against him to which he pleaded guilty on three prior occasions in 2004. It is a matter of great seriousness and significance as the use of knives appears to be becoming more widespread and the community’s attitude is that of abhorrence to this practice. Therefore this offence must be viewed as a most serious offence …[55]
The use of a knife is of considerable significance to the objective gravity of the offence and aggravates the criminality of this offence. [The Applicant’s] record of previous conviction is relevant not to increase the subjective seriousness but rather to emphasise the need for retribution deterrence and to protection of the community…
in crimes such as this one in which a knife was used that not only the offender needs to be deterred from further offences of this nature but that the general community need to be deterred from this, as I have said, disturbing habit or practice of carrying knives.[56]
[55] Ibid 187.
[56] T2, 24.
The Applicant told Dr Wojnarowska that he was acquainted with A through the community. He reported that A had been harassing him and his mother.[57] He later came into contact with A whilst in the queue at Centrelink.[58] During cross-examination, the Applicant denied that he pulled a knife on A and said that A pulled one on him.[59] He agreed that he has convictions for carrying a knife in a public place, but denied he had one in his possession on this occasion.[60]
[57] Transcript of Proceedings (21 September 2021) 31.
[58] ST2, 656.
[59] Transcript of Proceedings (21 September 2021) 30, 32, 33.
[60] Transcript of Proceedings (21 September 2021) 33.
On 1 April 2008, the Applicant was released from the custody of the State of New South Wales on a parole order.[61] That parole term was to expire on 1 October 2009.[62]
[61] T21, 176.
[62] Ibid 174.
Criminal damage, hindering police and offensive behaviour
On 30 November 2008, the Applicant was charged with the offence Destroy or damage property >$ 2000 &<=$ 5000-T2.[63] He was convicted in the Downing Centre Local Court on 13 November 2009 and sentenced to a good behaviour bond of 12 months’ duration with supervision requirements.[64]
[63] Ibid 205-206.
[64] Ibid.
On 7 December 2008, the Applicant was charged with the offences Resist or hinder police officer in the execution of duty and Behave in offensive manner in/near public place/school.[65] The Applicant was convicted in the Downing Centre Local Court on 13 November 2009 for these offences.[66] He received a good behaviour bond of 24 months’ duration and supervision requirements for the resist/hinder police and a financial penalty in the sum of $100 for the disorderly offence.
[65] Ibid 206.
[66] Ibid.
Common assault
On 25 June 2012, the Applicant was charged with the offence of Common assault, said to have been committed on 24 June 2012.[67] He was convicted in the Burwood Local Court on 24 January 2013 and sentenced to a financial penalty in the sum of $100.[68]
[67] Ibid 207.
[68] Ibid.
Drug and knife offences
On 27 May 2013, the Applicant was charged with a number of offences said to have been committed on the same day. He was convicted and sentenced in the Downing Centre Local Court on 7 November 2013 and 12 December 2013, as follows:
Offence
Sentence
Possess prohibited drug
$75 fine
Custody of knife in public place – first offence
$100 fine
Supply prohibited drug
Good behaviour bond of 12 months’ duration
Goods in personal custody suspected being stolen (not motor vehicle)
$50 fine
Fail to appear in accordance with bail undertaking
Good behaviour bond of 12 months’ duration
On 8 February 2014, the Applicant was charged with the offence Custody of knife in public place – subsequent offence.[69] He was convicted and sentenced in the Burwood Local Court on 10 July 2014 to a financial penalty in the sum of $400.[70] The Local Court decided to take no action on the two breaches of the good behaviour bonds imposed in December 2013.[71]
[69] T21, 209-210.
[70] T20, 160.
[71] T21, 209-210.
On 29 June 2015, the Applicant was charged with Destroy or damage property >$ 2000 &<=$ 5000-T2 committed on 22 April 2015.[72] He was convicted in the Burwood Local Court on 20 August 2015, fined $500 and ordered to pay compensation in the amount of $920.30.[73]
[72] Ibid 210.
[73] Ibid.
On 8 March 2016, the Applicant was again charged with the offence Custody of knife in public place – subsequent offence committed 27 February 2016.[74] He was charged with a further offence of Custody of knife in public place – subsequent offence on 7 May 2016.[75] He did not appear in accordance with his bail undertakings and was convicted in his absence on 20 July 2016.[76] On 27 July 2016, the Applicant was sentenced in the Parramatta Local Court as follows:
[74] T21, 210; T27, 242-243.
[75] T21, 211; T27, 244-245.
[76] T21, 210-211.
Offence
Sentence
Custody of knife in public place – subsequent offence
Good behaviour bond of 12 months’ duration with supervision and programme requirements
Fail to appear in accordance with bail undertaking
$200 fine
Custody of knife in public place – subsequent offence
7 months’ imprisonment, susp. upon entering a good behaviour bond of 7 months’ duration with supervision and programme requirements
Fail to appear in accordance with bail undertaking
$200 fine
In the intervening period, on 9 June 2016 and 28 June 2016, the Applicant was charged with Possess prohibited drug committed on 17 May 2016 and 26 June 2016 respectively.[77] He was convicted and sentenced in the Fairfield Local Court on 27 July 2016 for the first possession offence to a financial penalty in the sum of $1,500.[78] He was convicted and sentenced in the Parramatta Local Court for the second offence on 26 July 2016 to a financial penalty in the sum of $250.[79]
[77] T21, 212; T27, 246-249.
[78] T20, 159.
[79] Ibid 160.
On 25 January 2017, the Applicant was convicted and sentenced in the Hornsby Local Court for the following offences:
Offence
Sentence
Custody of knife in public place – subsequent offence
2 months’ imprisonment
Custody of knife in public place – subsequent offence
7 months’ imprisonment
Possession of equipment for administering prohibited drugs
$300 fine
Custody of knife in public place – subsequent offence (call up on breach)
7 months’ imprisonment
Custody of knife in public place – subsequent offence (call up on breach)
1 month imprisonment
Total effective sentence
7 months 9 days’ imprisonment
The Applicant told the Tribunal that between 2008 and 2017 he was taking medication and he was carrying a knife to protect himself because on numerous occasions other people had attempted to steal his medication from his pocket, and so he had to carry a knife to defend himself.[80]
[80] Transcript of Proceedings (21 September 2021) 40.
Remorse and responsibility for offending
At the hearing the Applicant stated:
I would like to firstly apologise to everyone for the mistakes that I have made and for the harms or misendeavours (sic) that I have had. I accept the crimes that I have committed, I’ve always done so. When I look back to the past I have made many mistakes. You know, some of them I take blame for, others I don’t. …[81]
[81] Transcript of Proceedings (12 October 2021) 57.
In a response to an invitation to comment on adverse information, the Applicant wrote a letter to the Department dated 7 December 2020 in which he stated:
I have changed myself a lot and feel very ashamed of what I did in Feb 2000. When I look back at this crime, I wish that I had never done this no matter how much in need my brother was. I acknowledge that my actions have traumatized the lady I robbed and I promise not to repeat this crime ever.[82]
[82] T24, 231.
In his response to a request by the Department for further information, the Applicant wrote in a letter dated 12 May 2020, that he has a ‘short temper’, ‘when people lie to me when they trick me into doing things especially officers and welfare officers’.[83] He claimed that it has taken him a long time to realise that being angry does not solve anything and the person it impacts most is him. A lot of people harass him, and he has to protect himself because he is ‘tired of being a victim’.[84] He referred to his slight build and living in an environment which ‘brought the worst out’ in him.[85] It has taken him longer to learn that fighting or bursting in anger does not solve anything. He is ‘sorry for a lot of things’, but it is ‘hard being without liberty’, and his life has been hard, and it has only become harder in detention.[86] He claimed that in the community he will be free from the ‘mental and physical torture’ that he has experienced while in immigration detention. He claimed that it has been a ‘life lesson’ and he has become more of a ‘conscious individual’ and has come to realise how ‘precious life is’.[87] His anger is now solved by ‘better communication with others’ and an ‘understanding of how vulnerable’ he is.[88]
[83] T22, 218.
[84] Ibid 220.
[85] Ibid.
[86] Ibid.
[87] Ibid.
[88] T2, 29.
Behaviour in gaol and immigration detention
Information from NSW Corrective Services records that whilst in prison the Applicant was been involved in multiple incidents, including not complying with directions (failed to attend muster, not complied with routine disobeyed direction and failed to comply with prison officers), having drugs in his urine, failed to provide urine sample, indecency, fight or other combat, intimidation, damage bedding and possession of unauthorised property.[89] When the Applicant was asked about these incidents during cross-examination he denied they had occurred.
[89] T2, 28.
The Applicant has been involved in numerous further incidents since entering immigration detention on 24 April 2017. According to a security risk assessment report dated 9 April 2020, there are 13 incidents recorded of abusive/aggressive behaviour, eight minor assaults, ten where contraband has been found, three incidents of minor damage, three minor disturbances and three incidents of self-harm.[90]
[90] T21, 169.
Date
Incident
17 February 2020
Found with contraband-alleged offender
9 February 2020
Damaged Commonwealth property- alleged offender
Displayed aggressive behaviour (threw microwave oven at an officer station)
20 January 2020
Contraband found (drug paraphernalia) – alleged offender
9 January 2020
Contraband found (wires in power socket) – alleged offender
1 November 2019
Assault (minor) - alleged offender
25 October 2019
Abusive/aggressive behaviour- alleged offender
24 October 2019
Abusive/aggressive behaviour- alleged offender
6 October 2019
Assault (minor)- alleged offender
Abusive/aggressive behaviour
29 September 2019
Threatened self-harm
25 August 2019
Abusive/aggressive behaviour- alleged offender
18 July 2019
Assault (minor)-involved
Abusive/aggressive behaviour-alleged offender
28 June 2019
Threatened self-harm
5 April 2019
Abusive/aggressive behaviour-alleged offender
5 April 2019
Abusive/aggressive behaviour-alleged offender
4 April 2019
Assault (minor)-alleged offender
2 January 2019
Abusive/threatening behaviour
17 December 2018
Contraband found-alleged offender
22 November 2018
Assault (minor)-alleged victim
29 October 2018
Minor disturbance-alleged offender
14 September 2018
Abusive/threatening behaviour-alleged offender
Contraband found-involved
3 August 2018
Contraband found-alleged offender
20 May 2018
Contraband found-alleged offender
19 May 2018
Disturbance (minor)-alleged offender
19 January 2018
Assault (minor)-alleged offender
5 November 2017
Contraband found-involved
3 November 2017
Abusive/aggressive behaviour-alleged offender
18 October 2017
Abusive/aggressive behaviour-involved
14 August 2017
Contraband found-involved
8 July 2017
Assault (minor)-alleged offender
7 July 2017
Disturbance (minor)-alleged offender
Assault (minor)-alleged offender
Threatened self-harm
Minor damage-involved
Abusive/aggressive behaviour-alleged offender
28 June 2017
Abusive/aggressive behaviour-involved
The Applicant was asked about an incident when he was reported to have told a mental health nurse on 15 November 2019 that he ‘would smash the GP’ if he was not successful in his review application at the Tribunal. The Applicant denied he made this threat.[91] He admitted that he has displayed abusive and aggressive behaviour towards Serco staff when he has been frustrated.[92] He denied an incident that was reported in July 2017 of him assaulting an officer and yelling profanities and threats to the staff.[93]
[91] Transcript of Proceedings (21 September 2021) 36.
[92] Ibid.
[93] Transcript of Proceedings (21 September 2021) 38.
The Applicant did not complete any training or courses when he was in prison or in immigration detention. In his response to the request for information, he stated that although there is a carpentry course available in immigration detention, he has not undertaken it as he wants his living conditions to be changed before he enrols in the course.[94]
[94] T22, 219.
Drug abuse and rehabilitation
The Applicant reported to Dr Gosia Wojnarowska, Consultant Psychiatrist, that when he arrived in Australia, he started using cannabis and did so until 2010. He said that cannabis was a significant part of his life and social life, and some of the offences were committed in order to support his drug habit.[95] In 2004 he started using Xanax on a daily basis for five years to support him with the psychological issues he was experiencing.[96] He reported experiencing withdrawals when he attempted to cease use of Xanax and cannabis. In 2011 he was able to cease Xanax and cannabis but was prescribed Lyrica for pain management following a car accident. He also reported a history of using ‘ice’, OxyContin, and alcohol.[97]
[95] ST2, 660.
[96] Transcript of Proceedings (12 October 2021) 58.
[97] ST2, 659.
The Applicant attended a drug rehabilitation programme while in prison in 2000-2001. He claimed there are no such programmes available in immigration detention. He requested to see a psychologist but was referred to a nurse who told him to take medication.[98]
[98] T22, 218.
On 3 August 2018 the Applicant was found to have implements which are utilised for an illicit substance; on 14 September 2018 he was found with contraband which tested positive for a prohibited substance, and on 20 January 2020 he was found with drug paraphernalia.[99]
[99] T2, 31.
The Applicant claims that if he was released into the community, he would engage with his family and conduct community work so as to keep himself occupied and avoid taking illicit substances. He is willing to participate in rehabilitation programmes if he were to be released into the community.[100]
[100] Ibid.
Mental health
The Applicant reported to Dr Wojnarowska that he suffered from depression on several occasions since arriving in Australia. He reported that these episodes were associated with psychosocial stressors such as lack of employment, inability to adjust to life in Australia and having a limited social network.[101] He recognised that he smoked cannabis and used other illicit substances to self-medicate.[102]
[101] ST2, 660.
[102] Ibid.
Following his first offence in 1998, the Applicant was referred to a psychologist by his parole officer. He reported that he attended counselling up until 2010 as an ‘on and off’ basis, and there were sometimes five to six months in between sessions.[103]
[103] Ibid.
The Applicant reported that he was depressed in 1998, 2005, 2006, 2009 and 2010. He was ‘unable to concentrate or do anything’. He believes this was likely linked to his cannabis use and associating with antisocial peers. The last time he recognised that he was depressed was in 2019 in the context of his visa being cancelled.[104]
[104] Ibid.
Psychiatric assessments
In sentencing the Applicant for Robbery armed with offensive weapon on 7 February 2000, Chief Justice Blanch noted the Applicant had described to psychiatrists having ‘suicidal ideas from time to time.’[105] A probation report indicated that the Applicant’s mother has said that ‘from the age of seven he exhibited signs of being extremely aggressive and violent’, that he ‘engaged in self head banging and that he exhibited paranoid thinking’, that he had ‘set his brother's bed alight and that he was given to loud screaming and yelling behaviour.’[106] His mother was of the view that the Applicant ‘was in need of help’. Chief Justice Blanch referred to a report by Dr Rosalie Wilcox, dated 3 February 2000 who stated that the Applicant has had ‘behavioural disturbance from an early age’ and that he has had ‘persecutory ideation’.[107] She said that he presented as having a ‘reactive depression’ as result of finding himself back in custody, but she said there was ‘no suggestion he was depressed in the period prior to his return to custody.’[108] Chief Justice Blanch indicated that Dr Wilcox further reported that it is possible that ‘he may have been depressed due to missing his older brothers and being concerned for their wellbeing.’[109] His Honour further referred to material in a pre-sentencing report and a psychologists’ report from Duffy Barrier and Robilliard, but noted that it was ‘quite plain on the basis of the material before [him] that there was nothing which would suggest a substantial psychiatric or psychological cause for the commission of the offence.’[110]
[105] T23, 226.
[106] Ibid.
[107] Ibid.
[108] Ibid, 227.
[109] Ibid.
[110] Ibid.
In sentencing the Applicant for Malicious wounding in August 2007, Judge Quirk referred to the remarks of Judge Charteris, who previously sentenced the Applicant in May 2004 for Aggravated stealing from a person. Judge Charteris noted that the Applicant’s mother gave the probation and parole officer in 1999 a history that the Applicant had exhibited ‘unusual behaviour since about seven years of age and was capable of violence and aggression’, and it was her view that he needed ‘psychiatric assistance’.[111] He had been referred to psychologists and psychiatrists in the past for mental health interventions but had refused to engage. Judge Charteris took into consideration a report prepared by a Dr Stevenson, who had considered that the Applicant suffered from a ‘possible diagnosis of severe personality disorders, chronic post-traumatic stress disorder, paranoid psychosis and cognitive intellectually deficits’.[112]
[111] T21, 189.
[112] Ibid 190.
Judge Quirk also referred to more recent report by a psychologist, Mr Kalojiannias, who found that the Applicant ‘was immature, was in desperate need of psychological supervision and treatment, that he was unable to manage his emotions, that he suffered from disorganisation in thought processes, disturbed emotionality and had beliefs of persecution all of which were present at the commission of this offence.’[113] While Judge Quirk acknowledged that the Applicant’s psychiatric history provided some explanation for his habit of carrying a knife, she concluded that it provided ‘absolutely no justification or excuse for doing so.’[114] Judge Quirk concluded that there were ‘special circumstances’, after considering a submission that this was justified by virtue of the Applicant’s need for psychological treatment.[115]
[113] Ibid.
[114] T2, 27.
[115] T21, 195.
The Applicant was referred to a psychologist by his probation and parole officer in July 2008. He met with a psychologist on five occasions who concluded in a report dated 24 November 2008 that he suffered from Post-Traumatic Stress Disorder and Major Depression.[116]
[116] ST2, 655.
Dr Gosia Wojnarowska, Consultant Psychiatrist
Dr Gosia Wojnarowska interviewed the Applicant by video link on two occasions on 9 and 14 July 2021 for a duration of about two hours,[117] and prepared a report dated 19 August 2021.[118]
[117] Transcript of Proceedings (21 September 2021).
[118] ST2, 652-665.
Dr Wojnarowska reported that the Applicant denied experiencing violent ideations in the past or recently, stating that he was not a violent person. When she questioned him about his violent offences, he said that they were mistakes in his life, or he had been provoked. In relation to the offences related to possession of a knife, he said that he carried it for his own protection. He denied any memory of the aggressive incidents at the detention centre.
During the interview she observed the following about the Applicant:
His attitude towards the interview and possible outcome of his immigration matters appeared to be indifferent. His insight into his current situation was fair and his judgement was not impaired.[119]
…
[The Applicant] had no future plans in relation to employment, accommodation, education, relationships or future abstinence from substances. He said that he would seek Centrelink assistance to seek employment and added that they should have assisted him in the past.[120]
…
His mother is the only identified protective factor as she is likely to provide him with support and accommodation.[121]
[119] Ibid 657.
[120] Ibid 661.
[121] Ibid 663.
In Dr Wojnarowska’s opinion, the Applicant does not suffer from a major mental illness, such as, for example paranoid psychosis, nor does he currently fulfill the criteria for Post-Traumatic Stress Disorder.[122] His behavioural pattern over the years commencing in his childhood suggests the presence of Severe Personality disorder on the antisocial spectrum. She opined that there is a possibility that the Applicant has a genetic predisposition for antisocial personality disorder as evidenced by his father’s behaviour described by his mother.[123] She diagnosed the Applicant as meeting the criteria for Antisocial Personality Disorder, ‘as evidenced by his history of breaking the law, acting impulsively and lacking regard for the safety of others’.[124] In her opinion, the Applicant ‘has no insight into his triggers, and he minimises his offending’.[125] She noted that the Applicant was notified of possible visa cancellation in 2006, however he continued to offend in a similar manner and associate with antisocial peers.[126]
[122] Ibid 657.
[123] Ibid.
[124] Ibid.
[125] Ibid 662.
[126] Ibid 663.
Dr Wojnarowska assessed the Applicant using the Hare Psychopathy Checklist—Revised (PCL-R).[127] She described the PCL-R as assessing the extent to which an individual’s personality structure conforms to the clinical construct of psychopathy and that the score obtained is an important component of other risk assessment tools including Structural Clinical Guides.[128] Dr Wojnarowska reported that the Applicant scored positively in some areas of the psychopathy checklist however, overall he did not fit the psychopathy definition. The elevations on lifestyle factors are consistent with antisocial personality disorder. Dr Wojnarowska also applied the HCR-20 v3[129] which she described as a broad-band violence risk assessment instrument with potential applicability to a variety of settings.
[127] Citing ‘(Hare 1991 and 2002)’.
[128] ST2, 657-658.
[129] Citing ‘(Webster, Douglas, Eaves, & Hart, 1997a; see Webster, Eaves, Douglas, & Wintrup, 1995, for Version 1)’.
In relation to the risk of the Applicant re-offending, Dr Wojnarowska stated:
His history of impulsivity, propensity to use substances as a coping mechanism and becoming violent, were taken into consideration when forming my opinion that his risk of future violence is in the moderate range. [The Applicant] is also at risk of engaging in antisocial behaviour’s which may not always be serious but have the potential to escalate.[130]
[130] ST2, 665.
In regard to the primary scenarios for future violence by the Applicant, Dr Wojnarowska opined:
The victim could be a person known or unknown to [the Applicant]. The most likely scenario would be him relapsing into drug use and reoffending to support his habit. He can also respond violently to a perceived insult or threat. The potential harm could be life threatening or resulting in psychological damage to the victim. It’s not like to be imminent.[131]
[131] Ibid 664.
CONSIDERATION AND REASONS
In NBMZ v Minister for Immigration and Border Protection,[132] Allsop CJ and Katzmann J recognised that Article 33(1) of the Refugee Convention ‘is central to the protection to be afforded to a refugee’ and ‘is the cornerstone of the protection of refugees and those seeking asylum’. Their Honours further identified the function and purpose of Art 33(2) at [21]:
It is important to recognise not only the place of Art 33(1), but also of Art 33(2) in the contextual fabric for decision-making about those who have been recognised as refugees. It describes the serious conditions that justify the return of a refugee to a place where he or she may face persecution. Article 33(2) and the circumstances within it reflect the balance contained within the Refugees Convention between protection of those who need it, and the legitimate entitlement of Contracting States not to be required to give protection to those who pose a danger to the host State and its people.
[132] [2014] FCAFC 38; (2014) 220 FCR 1, at [12].
Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The outline to the Explanatory Memorandum to the Bill stated:[133]
The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa. The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of ‘refugee’ but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa.
[133] 12.
Paragraph 1236 of the Explanatory Memorandum further stated:
New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention. As such, a person who is captured by new subsection 36(1C) will not engage Australia’s non-refoulement obligations under the Refugees Convention or for the purposes of the new statutory framework relating to refugees.
It is against this background that the Tribunal now considers whether the Applicant’s offending is such that the requirements of s 36(1C) are satisfied thereby disentitling him to the grant of a protection visa.
1) Has the Applicant been ‘convicted by a final judgment of a particularly serious crime’?
The Applicant has been convicted of offences which meet the threshold of being a ‘serious Australian offence’ in section 5M(a) of the Act. A ‘serious Australian offence’ is defined in s 5(1)(a)(i) of the Act to include an offence that ‘involves violence against a person’ which is punishable by an ‘imprisonment for maximum term of not less than three years’: s 5(1)(b)(iii) of the Act.
At least three of the offences for which the Applicant was convicted were punishable by a maximum term of imprisonment of not less than three years. These include the following:
·7 February 2000 - Sydney District Court - Armed robbery with offensive weapon – maximum sentence of 20 years’ imprisonment
·20 May 2004 - Paramatta District Court - Aggravated stealing from a person - maximum sentence of 20 years’ imprisonment
·4 May 2007 - Paramatta District Court - Malicious wounding - maximum sentence of seven years’ imprisonment
There is some uncertainty as to whether the Applicant accepts that he has been convicted by final judgment of particularly serious crimes. His evidence is that he accepts the Armed Robbery with offensive weapon conviction, but he denies aspects of the Aggravated stealing from a person and Malicious wounding offences. The Tribunal has considered the authorities relevant to the approach of an administrative decision-maker regarding evidence of a conviction. These authorities confirm that where, as here, the existence of a conviction is the jurisdictional fact which conditions the exercise of power, the Tribunal may not impugn or go behind either the conviction or the sentence: Minister for Immigration and Multicultural Affairs v Ali.[134] The relevant principles were summarised by Deputy President Forgie in HKW and Minister for Home Affairs (Migration):[135]
[134] [2000] FCA 1385 [40]-[45].
[135] [2019] AATA 4393 at [72] citing [2010] AATA 447; (2010) 115 ALD 590; 53 AAR 287 at [120].
Having considered these authorities, I remain of the view that the principles to be drawn from them can be summarised as Senior Member Fice and I did in YYMT and MQCR:
When all of the cases are considered, it seems to us that the five propositions set out by Branson J in Ali have not been qualified by subsequent authority ... Applying those principles in this Tribunal means that we must:
1) first identify the source of jurisdiction;
2)where jurisdiction is dependent upon a person’s having been convicted of a particular offence or sentenced in a particular way:
(b)the fact that the conviction has been entered or the particular sentence imposed by a court cannot be questioned;
(c)in the case of a conviction, the Tribunal may not make findings of fact that contradict those that had to be found in order to establish the elements of the offence of which the person has been convicted or the findings of fact on which the sentencing Judge imposed the sentence; and
(d)in the case of a sentence, it should look upon the facts found by the sentencing Judge as strong prima facie evidence of those facts but may also look behind and beyond them provided it does not go so far as to make findings of fact that, had they been made by the court, would not have supported the conviction or the particular sentence imposed
Consistently with these authorities, the Tribunal is satisfied that the Applicant has been ‘convicted by a final judgment of particularly serious crimes’ based on the Nationally Coordinated Criminal History Check for the Applicant dated 26 March 2020 which records that he was convicted and sentenced for the three index offences and the sentencing remarks of Chief Justice Blanch for the February 2000 conviction, and those of Judge Charteris and Judge Quirk for the May 2004 and May 2007 convictions.
The Tribunal is satisfied that the offences for which the Applicant were convicted also ‘involve violence against a person’. The Applicant threatened the first victim with a knife to obtain her property. He struck the second victim twice across the face, when she tried to get her sunglasses back from him, and he stabbed the third victim in his chest, under the right armpit, during their physical confrontation.
Accordingly, for the purposes of s 36(1C)(b), the Tribunal is satisfied that these offences are ‘serious Australian offence[s]’ under s 5M(a) and s5(1) of the Act, as they involve violence against a person and are punishable by a term of at least three years’ imprisonment.
2) Is the Applicant ‘a danger to the Australian community’?
The determination of whether the Applicant poses a ‘danger to the Australian community’ does not involve the exercise of a discretionary power. If the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision: s 65 of the Act and MVLW and Minister for Immigration and Border Protection (‘MVLW’).[136] It cannot balance the danger the Applicant poses to the community against the possible harm they may face if returned to their home country: SZOQQ v Minister for Immigration and Citizenship.[137]
[136] [2017] AATA 1557 at [29]-[32].
[137] [2012] FCAFC 40 at [27].
In its submissions, the Respondent referred to the differing interpretations of ‘danger to the Australian community’ under s 36(1C)(b) of the Act by Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship[138] (‘WKCG’) and by Logan J in DOB18 v Minister for Home Affairs[139] (‘DOB18’).[140]
[138] (2009) 110 ALD 434.
[139] (2019) 269 FCR 636.
[140] Respondent’s SFIC para 25-29.
In WKCG, Deputy President Tamberlin articulated the following meaning of ‘danger’ in the context of s 36(1C)(b) of the Act:
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’.[141]
(Emphasis added).
[141] [31].
Deputy President Tamberlin explained that whether a person is a danger to the Australian community is a question of fact and degree, and that regard must be had to all the circumstances of each individual case.[142] The Deputy President’s interpretation of ‘danger’ in s 36(1C) of the Act has been applied in subsequent Tribunal decisions including BHYK and Minister for Immigration and Citizenship[143] (‘BHYK’); MVLW[144]; LKQD and Minister for Immigration and Border Protection[145] (‘LKQD’); RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;[146] YYTF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;[147] SQDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; [148] YYTF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘SHXZ’);[149] and KQBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘KQBN’).[150]
[142] WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434, 25.
[143] [2010] AATA 662.
[144] [2017] AATA 1557.
[145] [2018] AATA 2710.
[146] [2020] AATA 665.
[147] [2021] AATA 503.
[148] [2021] AATA 2980.
[149] [2021] AATA 1992.
[150] [2021] AATA 2917.
In DOB18 Logan J, by way of obiter, articulated his interpretation of ‘danger’ in the context of s 36(1C) of the Act.[151] His Honour observed that ‘danger’ and ‘risk’ are qualitatively different concepts:
The meaning to afford “danger” in s 36(1C)(b) of the Act must commence with the text itself, with context and general purpose and policy being relevant to the determination of the meaning to give to the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27. The word “danger” can mean “risk” but also carries with it the meaning of “the condition of being exposed to the chance of evil; risk, peril” (Oxford Dictionary). As is observed in respect of the word, “danger” in Garner’s Modern English Usage, “Idiomatically speaking, one runs a risk, not a danger.” Yet, as a matter of ordinary experience of English idiom, the word, “danger” on a public warning sign conveys a very different and heightened sense of potential peril than would the word, “risk”. Indeed, for that reason, and again as a matter of ordinary experience, it is rare, if at all, that one encounters a warning sign with the word, “risk” in prominence. “Danger” and “risk” are not, in English usage, in my view, exact synonyms. When regard is had both to the text and to the nature and purpose of the provision, it is inherently unlikely that, the word, “danger”, as found in the exception, refers to a risk that is discernible but which is trivial, nothing more than a bare possibility.[152]
[151] [83].
[152] [72].
His Honour held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’, and to the extent that WKCG suggested otherwise, His Honour disagreed.[153] He stated at [83]:
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a ‘risk’, perhaps small. In my view, read in context, ‘danger’ in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about ‘danger’. In my view, it carries a narrower and more restrictive meaning than just ‘risk’.
(Emphasis added)
[153] DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 83.
Logan J’s comments have resulted in a perceived tension in the current case law regarding the interpretation of ‘danger’ in s 36(1C) of the Act. The Respondent submitted that the differing approaches of Deputy President Tamberlin and Logan J can be reconciled.[154] The Respondent cited the following passage from HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[155] (‘HYTB’) where the Tribunal considered there was no inconsistency between WKCG and DOB18 and observed:[156] :
It is consistent to say that in order for a person to be a “danger” there must exist, at the time of the decision, a present risk which is “real” or “significant” or “serious” which is “neither remote nor fanciful” that the person will cause harm of a sufficiently serious nature (for example “of physical harm, or extreme emotional harm”) in the present or the future. If no such risk is present at the time of decision, it cannot be said that a person is a danger. Similarly, if a present risk of future harm relates to a harm which is insufficiently serious, for example a moderate risk of mere “upset” then the person will not be a danger. Conversely, if there is a low risk but one which is none-the-less “real” or “significant” or “serious” of particularly serious future harm, say grave physical injury, then that risk may be sufficient to determine that a person is a danger to the Australian community.
[154] Respondent’s SFIC, para 6.
[155] [2020] AATA 1967.
[156] [64].
In SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration),[157] Senior Member Dr Evans-Bonner agreed that the views of DP Tamberlin and Logan J can be reconciled. This Tribunal adopted this approach in KQBN and SHXZ.
[157] [2021] AATA 1515 [39].
In LKQD v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs,[158] Jackson J rejected a contention that ‘danger’ referred to in s 36(1C) should be construed to mean a ‘very serious danger’, finding that it simply said ‘danger’. His Honour considered the remarks of Logan J and held, without deciding their correctness, that even the ‘present and serious risk’ standard did not rise to the level of ‘very serious danger’.[159]
[158] (2019) 167 ALD 17 [57].
[159] [62].
In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[160] (‘KDSP’) Bromberg J explained in obiter that the statutory criterion of ‘danger’ in s 36(1C) suggests a ‘high level of risk’ and that this reflects the balancing exercise contained in Article 33(2) to which s 36(1C) gives effect:
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] FCAFC 63; (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]). …
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.
[160] [2020] FCAFC 108 [54]-[55].
Having regards to the above authorities, the Tribunal finds that s 36(1C)(b) requires an assessment of whether the Applicant presents a real and significant possibility of ‘danger to the Australian community’, and that ‘danger’ requires a qualitatively higher level of possible harm and ‘conveys a very different and heightened sense of potential peril than would the word, “risk”’. A stringent standard is required in order to give effect to Australia’s obligations under Article 33(2) of the Refugee Convention, which s 36(1C) is intended to codify.
In WKCG Deputy President Tamberlin identified some of the factors relevant to an assessment of whether a person is a ‘danger to the Australian community’:[161]
Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism …
[161] [26]-[27].
These factors provide useful tools for an assessment of whether the Applicant is a ‘danger to the Australian community’. However, as Senior Member Morris observed in FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration),[162] this list should not be taken to be exhaustive, and regard must be had to all the circumstances of each individual case.
[162] [2021] AATA 1513 [124].
Seriousness and nature of the crimes committed
The Applicant has a significant criminal history over a period of almost two decades from January 1998 to April 2017, when he was taken into immigration detention. The Applicant’s violent offences, particularly those which resulted in the 2000 and 2007 convictions and terms of imprisonment, are very serious. His offences involved threats of and actual violence towards members of the Australian community, including two females. The Applicant has shown a propensity to engage in violent behaviour, including while armed with a knife. The nature and sequence of the Applicant’s offending indicates that he showed little regard for the clear warnings that police had provided in relation to his behaviour, or the consequences of that behaviour. It also demonstrates that his offending was both prone to violence, or the threat of violence, and escalated in seriousness from the threat of violence to actual wounding. The sentencing judges for the Applicant’s 2000 and 2007 convictions described them respectively as ‘very serious’[163] and ‘a most serious offence’.[164]
[163] T2, 24.
[164] Ibid.
The Applicant’s particularly serious crimes identified above were aggravated by the fact that his violent and intimidatory conduct was targeted at members of the community who are entitled to safety in going about their daily lives and work and not be subjected to threats, harassment and violence. While the evidence is that the Applicant’s offence of Malicious wounding involved some provocation from the victim, his two other violent offences were unprovoked and directed at female victims. In addition to these offences, the Applicant has also been convicted for assault, including as recently as January 2013.
In addition, the Applicant has two convictions for criminal damage (2009 and 2015) and multiple offences for carrying a knife in a public place (2004, 2013, 2014, 2016 and 2017). These numerous weapons offences occurred despite multiple warnings from the courts and police about such conduct being inexcusable,[165] and the imposition of harsher sentences. The Applicant has also been convicted of multiple offences of resisting police officers in the execution of their duty (1999 and 2009), and he has failed to comply with the conditions of his bail, good behaviour bonds and parole orders on numerous occasions.
[165] see, e.g., T21, p 187 and T27, 247.
The Applicant also has an extensive history of misconduct in custody, both in prison and in immigration detention.[166] This included the correctional centre offences of indecency and refusing or failing to comply with a direction relating to order or discipline during his most recent term of imprisonment in 2017. During earlier periods of imprisonment, the Applicant incurred charges for fighting (2010), intimidation (2007) and drug-related offences (2009, 2007 and 2000). Since entering immigration detention in April 2017, a significant number of incidents have been recorded in relation to the Applicant for abusive/aggressive behaviour, assault, contraband and criminal damage. Such conduct is relevant to the assessment of danger to the Australian community: Re Nolan and Minister for Immigration, Multicultural and Indigenous Affairs.[167]
[166] T21, 177-178 NSW prison charge history; T21, 169; T29, 252-279, 316-371 Immigration detention incident reports.
[167] [2005] AATA 1035 [18].
The number and seriousness of the Applicant’s criminal offences, particularly his use of a knife to rob and stab people, and his ongoing misconduct whilst incarcerated, support a finding that the Applicant’s behaviour poses a threat of serious harm to members of the public and that he is therefore a danger to the Australian community.
Length of the sentence imposed
On 7 February 2000 the Applicant was sentenced to three years eight months’ imprisonment for Robbery armed with offensive weapon and on 10 August 2007 he was sentenced to three years’ imprisonment for Malicious wounding. As the maximum penalty for these offences are 20 years imprisonment and seven years imprisonment respectively, the sentences imposed indicate that the offences were not at the most serious end of the range of offences contemplated by the maximum sentence. Nevertheless, the sentencing judges considered terms of imprisonment to be appropriate, and whilst the maximum term of imprisonment was not imposed, the length of the sentences are not insubstantial.
In PNLB and Minister for Immigration and Border Protection,[168] the Tribunal noted that, ‘[s]entences involving terms of imprisonment are the last the objective seriousness of the offences involved’. The custodial sentences imposed on the Applicant indicate that the courts considered the Applicant’s offending to be serious. The Tribunal finds that the imposition on the Applicant of terms of imprisonment is an objective indicator of the seriousness of his offending, and supports a finding that he is a danger to the Australian community.
[168] [2018] AATA 162 [22].
Mitigating and aggravating circumstances
In considering whether there may be any mitigating circumstances, the Tribunal notes the Applicant’s evidence that when he committed the Armed robbery offence in October 1998, he was motivated by obtaining money to assist his brother who had lost both his legs in the war in Iraq. The Tribunal does not consider that this is an acceptable reason for armed robbery, nor does it provide a justification for his criminal offending. The Applicant robbed at knifepoint a female stranger who was the only other passenger in the train carriage he was travelling in, which would likely have put her in grave fear of her life.
The sentencing remarks of Judge Quirk for the Applicant’s offence of Malicious wounding note that the Applicant had experienced ‘some provocation’ which led to him stab a male acquaintance in the chest on 24 January 2006. Judge Quirk acknowledged that a jury found the Applicant not guilty of Malicious wounding with intent to do grievous bodily harm and instead found him guilty of the lesser alternative charge of Malicious wounding. Her Honour also accepted that the Applicant’s actions had not been premeditated. However, the sentencing remarks indicate that there were allegations that the Applicant had been behaving aggressively prior to the stabbing. Judge Quirk also referred to the Applicant’s habit of carrying a knife and noted that there was ‘absolutely no justification or excuse for doing so’.[169] While the Tribunal accepts that there was a degree of enmity between the Applicant and his victim and an element of provocation, neither can be considered a mitigating circumstance which reasonably accounts for the Applicant stabbing another person in the chest.
[169] T2, 26.
In considering the possibility of other mitigating circumstances, the Tribunal has had regard to the psychological reports in relation to the Applicant that were before the courts when he was sentenced, the Applicant’s evidence about his mental health, and recent psychological assessments of the Applicant. The Applicant claims to have been depressed at the time of his offending in October 1998. He also claims to have suffered depression in 2005, 2006, 2009 and 2010. Some but not all these periods coincide with the Applicant’s criminal offending. The Tribunal notes that neither Chief Justice Blanch nor Judge Quirk considered that the evidence before them, which included psychologists’ reports in relation to the Applicant, supported a finding that his mental health was a significant contributor to his criminal offending. The Applicant was referred to a psychologist by a probation and parole officer in July 2008 and he met with them on five occasions. The report dated 24 November 2008 found that the Applicant suffers from Post-Traumatic Stress Disorder and Major Depression. The Applicant’s evidence is that he has not had further sessions with a psychologist, and he is not currently taking any medication.
The Tribunal has given considerable weight to the recent psychiatric report prepared by Dr Wojnarowska following two sessions of two hours’ duration with the Applicant. She concluded that the Applicant does not suffer from a major mental illness nor does he currently fulfill the criteria for Post-Traumatic Stress Disorder.[170] In her opinion the Applicant’s behavioural pattern commencing in his childhood indicates the presence of Severe Personality disorder on the antisocial spectrum. She found that the Applicant, meets the criteria for Antisocial Personality Disorder as evidenced by his history of breaking the law, acting impulsively and lacking regard for the safety of others.
[170] ST2, 657.
Having had regard to relevant psychological reports and the other evidence before the Tribunal in relation to the Applicant’s mental health, the Tribunal finds that the Applicant’s difficult life experiences and his bouts of depression may have contributed to his criminal offending. However, it is not satisfied that his offending can be attributed to a diagnosed mental illness, and thereby mitigated by health considerations.
In considering whether there may be any aggravating circumstances the Tribunal notes that the Applicant has not taken full responsibility for his criminal offending. Dr Wojnarowska reported that the Applicant ‘minimised both the severity and frequency of his offending’.[171] Whereas he accepted that he committed Armed robbery in October 1998, he attempted to justify this offending on the grounds that it was to obtain money to help his brother. In relation to the second offence of Aggravated stealing in March 2002, the Applicant claims that the victim was a woman with whom he was in a relationship and that he attempted to pick up her sunglasses when they fell off her. As regards the third offence of Malicious wounding the Applicant denied he had a knife in his possession and that it was his victim who pulled a knife on him.
[171] Ibid 656.
In her report, Dr Wojnarowska observed that the Applicant ‘has no insight into his triggers, and he minimises his offending’.[172] The Applicant refers to his offending as ‘mistakes’, some of which he takes the blame for and others he does not. He has recognised that his offence of Armed Robbery in 1998 would have traumatised his female victim, but he denies responsibility for the Aggravated Stealing and Malicious wounding offences. The Applicant also has failed to take responsibility for his behaviour in gaol and immigration detention. In his oral evidence he denied that he was involved in any incidents in gaol, and when questioned by Dr Wojnarowska about the recorded aggressive incidents at the immigration detention centre he denied any memory of these.
[172] Ibid 662.
The Applicant’s refusal to take full responsibility for his actions or to show remorse or sympathy for his victims despite the passage of more than a decade since these offences is such that the Tribunal cannot be confident that his attitude will change in the future. The Tribunal finds the Applicant’s limited expressions of remorse and empathy for his victims, together with his lack of insight into the seriousness of his offending, supports a finding that the Applicant is a danger to the Australian community.
Extent of the criminal history, period over which prior crimes took place, and criminal record as a whole
In addition to the four criminal convictions which have resulted in custodial sentences being imposed on the Applicant, he has been convicted of multiple other offences, including; failure to comply with direction, resist officer in execution of duty, use offensive language in/near public place/school, travel on train using invalid travel pass, intimidate police officer in execution of duty, supply a prohibited drug, carry cutting weapon upon apprehension, escape police custody possess/use a prohibited weapon without permit, possess prohibited plant, possess prohibited drug, destroy or damage property, resist or hinder police officer in the execution of duty, behave in offensive manner in/near public place/school, common assault, custody of knife in public place, goods in personal custody suspected being stolen, fail to appear in accordance with bail undertaking, possess/attempt to prescribed restricted substance, and fail to appear in accordance with bail undertaking.
The Applicant committed his first criminal offence in January 1998, three years after his arrival in Australia. He committed further offences in 1999, 2002, 2003, 2004, 2006, 2008, 2009, 2012, 2013, 2014, 2015 and 2016. He was gaoled in January 2017 and since April 2017 he has been held in immigration detention. The Applicant’s offending occurred over an extended period of time from January 1998 to December 2016 and spans the 18 years during which he was residing in the community. His criminal record is characterised by a consistent pattern of offending and demonstrates a disregard for the law and a propensity for violent behaviour.
The sustained nature and frequency of the Applicant’s criminal offending since January 1998 supports a finding that the Applicant is a danger to the community.
Prospects of rehabilitation, risk of re-offending and recidivism and the likelihood of relapsing into crime
Risk of re-offending and recidivism and the likelihood of relapsing into crime
In considering the Applicant’s risk of re-offending and recidivism and the likelihood of him relapsing into crime, the Tribunal notes that he has continually re-offended despite being sentenced to terms of imprisonment and being given a warning in December 2007 that his criminal behaviour may lead to the cancellation of his visa. Whilst the Applicant’s particularly serious crimes occurred in 1998, 2002 and 2006, his offending spans an 18-year period from 1998 to 2016. The Applicant’s numerous offences during this time include multiple convictions for carrying a knife, which he used on two occasions to threaten and stab his victims.
The Tribunal also notes that the Applicant re-offended whilst a penalty for his previous offending was still in effect. He demonstrated disregard for Australia’s legal system when he committed the offence of Malicious wounding on 24 January 2006 when he was still on a two-year good behaviour bond, which had been imposed on him on 20 May 2004 for the prior offence of Aggravated stealing from a person. As a consequence, the Applicant’s two-year prison suspended sentence for this offence was enlivened. The Applicant’s repeated offending in Australia suggests that his capacity to distinguish right from wrong and his ability to behave in accordance with Australian law is deficient.
In his letter to the Department dated 12 May 2020 the Applicant claimed he has learned that being angry and fighting does not solve anything, and that his anger is solved by better communication. The Tribunal recognises and places some weight on the fact that the Applicant did not commit any further violent offences after the Malicious wounding conviction in 2007. However, in the following decade he committed numerous criminal offences, and was convicted of multiple offences of Custody of knife in public place. The Applicant was charged and sentenced for many, albeit relatively minor, offences throughout 2008, 2009, 2010, 2012, 2013, 2014, 2015 and 2016. His criminal record indicates that he is unable to live in the community without engaging in criminal behaviour. In particular, his record indicates that he does not have the skills, experience or awareness to remove himself from situations before they escalate. Furthermore, his behaviour indicates that he regards carrying weapon as necessary or normal, and that he does not appreciate that doing so is criminal offence despite being convicted of multiple offences.
The evidence before the Tribunal is that the Applicant has continued to display aggressive and abusive behaviour during his periods in gaol and immigration detention. The Tribunal accepts that a person such as the Applicant who has been detained for extended periods in gaol and immigration detention would become frustrated and angry about their circumstances. However, the numerous reported incidents in relation to the Applicant indicates that he has a tendency not to adhere to directions and comply with applicable rules. The Tribunal notes that the Applicant’s evidence is that he completed an anger management course as part of his rehabilitation in 2000-2001, and he has come to realise that anger does not solve anything and has learned to communicate better with others. However, there is no evidence that he has completed any subsequent anger management or other self-education programs in the past two decades. Given the Applicant committed multiple criminal offences from 2001 to 2016, including stabbing a man, and that he has been involved in multiple incidents involving aggressive behaviour in gaol and immigration detention, the available information indicates that he continues to lack the ability to effectively manage his anger and conflicts with others. Based on the evidence before it, the Tribunal finds that the Applicant’s recent conduct in immigration detention raises doubts as to whether much weight can be given to his statements in his letter dated 12 May 2020 that he has learned to control his anger and communicate more effectively with others.
The Tribunal notes that the Applicant denies that he was involved in any of the recorded incidents when he was in gaol and claims he has no memory of any aggressive behaviour in immigration detention. The Applicant’s abnegation of responsibility for his conduct in gaol and immigration detention is consistent with his refusal to take full responsibility for his past criminal behaviour whilst in the community. His remorse for his offending was noted in the sentencing remarks of Judge Quirk dated 10 August 2007. In his letter dated December 2020 he expressed shame and remorse for his offending in October 1998 and acknowledged that his actions would have traumatised the woman he robbed in 2002. However, the Applicant repeatedly offended over a period of 18 years, which demonstrates that his remorse for his early offending did not prevent him from continue to re-offend. Further, the Applicant’s conduct in prison and immigration detention indicates his lack of awareness of the behaviour, patterns, environments and relationships that he would need to avoid in the future if he is not to re-offend.
The Applicant’s evidence is that he trained as a carpenter in Iraq, but he has not worked in this trade in Australia due to his limited English. He has had some work in Australia working in various jobs including at food markets, a kebab shop, as a delivery driver and as a carpark attendant.[173] With the exception of attending English language training at TAFE, the Applicant has not undertaken any relevant training or courses when he was in the community, in prison or in immigration detention. The Applicant stated in his letter dated 12 May 2020 that there is a carpentry course available in immigration detention, but he would not undertake it until his living conditions were changed. The Applicant’s limited work skills and experience are such that he would struggle to find employment and thereby attain financial security in the community. This may impact on his ability to refrain from re-offending, particularly given that his need for money has motivated his criminal offending in the past.
[173] T9, 137; ST2, 659.
In his letter dated 12 December 2020, the Applicant described his family as his ‘anchor’ and stated that spending more time with his family would be means of avoiding future offending.[174] The Tribunal notes that the Applicant’s mother, four sisters and three brothers reside in Australia,[175] and that they apparently were unable to prevent the Applicant from engaging in repeated criminal conduct over an extended period of time. There are no statements from his family members or other information to indicate how the Applicant’s family would be able to prevent the Applicant from relapsing into criminal behaviour in the future. Accordingly, based on the Applicant’s criminal history and his life circumstances, the Tribunal finds that the likelihood of recidivism is high. Although many of the offences for which the Applicant was convicted were relatively minor, he has been convicted of violent and serious offences, particularly Malicious wounding. Moreover, despite this conviction, the Applicant continued to carry a knife for his ‘protection’, and was not deterred from doing so despite being convicted for multiple offences for this behaviour. Based on this information, the Tribunal finds that his stated intention to live crime-free in the community, although genuine, is unlikely to be realised.
[174] T22, 220.
[175] Transcript of Proceedings (12 October 2021) 58.
Finally, the Tribunal has given significant weight to Dr Wojnarowska’s findings in relation to the risk of the Applicant re-offending. Based on her assessment, she concluded that his ‘risk of future violence is in the moderate range’ and that he also is at risk of engaging in ‘antisocial behaviour which may not always be serious but have the potential to escalate’.[176] Based on the evidence before it and for the reasons stated, the Tribunal finds that the Applicant’s risk of re-offending and recidivism are such that he is a danger to the community.
Prospects of rehabilitation
[176] ST2, 665.
The Applicant’s evidence is that he used marijuana and crystal methamphetamine ‘a few times’ when he was going through a ‘hard time’ in his life. He attended a drug rehabilitation programme while in prison in 2000-2001. He claims that there are no such programmes available in immigration detention. He says that he now realises that drugs ‘don’t solve anything’ and he no longer tries to ‘escape [his] hardships’.[177]
[177] T22, 218.
The evidence before the Tribunal is that despite attending a drug rehabilitation programme in 2000-2001, the Applicant continued to take drugs when he was released from gaol. His criminal history records that he was sentenced for seven offences of possessing a prohibited drug and four offences of supply of a prohibited drug in the period December 2002 to June 2016. Records before the Tribunal indicate that since being transferred to immigration detention in April 2017, the Applicant has been found with contraband items on multiple occasions, including drugs and drug paraphernalia. On 3 August 2018 he was found to have implements which are utilised for an illicit substance, on 14 September 2018 he was found with contraband which tested positive for a prohibited substance, and on 20 January 2020 he was found with drug paraphernalia. These incidents indicate that the Applicant continues to use illicit substances despite being in the restrictive environment of immigration detention. They also undermine his claim that he realises that drugs are not a solution to his problems, and that he has ‘learned to address [his] problems rather than burying them’.
The Tribunal finds that the Applicant’s apparent ongoing use of illicit substances represents a significant obstacle to his rehabilitation. The Applicant claims that if he was released into the community, he would engage with his family and conduct community work as a means to keep himself occupied and avoid taking illicit substances. He also states that he is willing to participate in rehabilitation programmes. There is no evidence which indicates that the Applicant has participated in any drug rehabilitation programmes since 2000-2001, despite being convicted of numerous drug-related offences between December 2002 and June 2016.
On the basis of the evidence before it, the Tribunal finds that the Applicant has downplayed the extent of his drug usage and that he continues to use illicit substances in immigration detention. The fact that the Applicant has apparently not effectively addressed his substance abuse problems impacts significantly on his prospects of rehabilitation. The Applicant’s propensity to use substances as a coping mechanism and becoming violent were taken into consideration by Dr Wojnarowska when forming her opinion that his risk of future violence is in the moderate range.
The Applicant’s criminal record and as his limited work experience, training and literacy limit the opportunities that are available to him in the community. While his incarceration in gaol and immigration detention for the past five years have limited his access to employment and education opportunities, the Tribunal notes that he did not avail himself of training courses offered to him. There is very little evidence other than the Applicant’s statements that he has made efforts to change and improve his future prospects. Dr Wojnarowska reported that he ‘had no future plans in relation to employment, accommodation, education, relationships or future abstinence from substances [and] said that he would seek Centrelink assistance to seek employment’.[178]
[178] ST2, 661.
The Applicant claims that he will resist the temptation to take illicit substances in the community by working full-time and spending more time with his family.[179] However, there is limited other evidence before the Tribunal of family and community supports available to the Applicant which would assist with his rehabilitation and reintegration if he were released into the Australian community.
[179] T22, 218.
Based on the evidence before it, the Tribunal cannot be satisfied that the Applicant has made adequate progress towards rehabilitation and addressing the issues that gave rise to his offending behaviour. Accordingly, the Tribunal finds that the Applicant is at a moderate risk of re-offending as he was assessed by Dr Wojnarowska. The Applicant’s low prospects of rehabilitation support a finding that he is a danger to the community.
Likelihood of relapsing into crime
The Applicant received a warning from the Department in December 2007 that his criminal conduct could lead to the cancellation of his visa. In March 2009 it was determined that his visa would not be cancelled. Despite being clearly put on notice by the Department that his visa could be cancelled as a consequence of his criminal offending, the Applicant proceeded to disregard this warning and committed further offences in the years that followed.
The Tribunal finds that as a potential consequence of the cancellation of the Applicant’s visa was his removal to Iraq, his claimed fear of being returned there should have been a strong motivation for him to cease criminal offending. The fact that this was not a strong incentive against him reoffending markedly lessens the likelihood that it will be a factor motivating the Applicant not to offend in the future should he be permitted to remain in Australia.
The Applicant’s previous lack of willingness to undertake programs to address his substance abuse and anger management issues makes it difficult for the Tribunal to find that he will do so if he is permitted to re-enter the community. If the Applicant is granted a protection visa and released into the community he will resume his life without restrictions or supervision requirements. There will be no orders in place requiring him to undertake programs nor will he be monitored in any way. Dr Wojnarowska was of the view that the most likely scenario would be the Applicant relapsing into drug use and re-offending to support his habit or responding violently to a perceived insult or threat. Dr Wojnarowska considered that the potential harm to his victims could be life-threatening or cause them psychological damage. The Tribunal finds that the real potential for the Applicant to relapse into criminal offending and harm persons known or unknown to him makes him a danger to the community.
Based on an evaluation of the factors identified by Deputy President Tamberlin in WKCG, the following is a summary of the Applicant’s behaviour and circumstances which support a finding that he presents a real and significant possibility of ‘danger to the Australian community’:
a)The Applicant’s crimes are objectively serious and violent in nature, involving both actual and threatened physical violence against his victims which included two females.
b)Any mitigating circumstances identified in the Applicant’s offending are outweighed by countervailing aggravating circumstances, in particular his failure to take full responsibility for his offending and his lack of insight into the impact of his offending on his victims.
c)The Applicant’s criminal offending over the 18-year period from January 1998 to December 2016 was frequent and escalating in seriousness.
d)The risk of the Applicant re-offending is moderate, given his demonstrated propensity to re-offend in the past, his reluctance to take full responsibility for his criminal offending, and his failure to address the anger issues and substance abuse problem that contributed to his offending.
e)The Applicant’s previous history of re-lapsing into drug use and aggressive behaviour when unsupervised in the community, and the limited family or other assistance or supports available to him, creates a real risk he will not successfully rehabilitate if released.
CONCLUSION
For the reasons outlined above, the Tribunal finds that the criterion in s 36(1C)(b) of the Act are satisfied for reason that the Applicant:
1)has been convicted by a final judgment of a particularly serious crime; and
2)is a danger to the Australian community.
DECISION
The Reviewable Decision of the delegate of the Respondent dated 11 February 2021 to refuse the Applicant a Class XA subclass 866 Permanent Protection visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 139 (one hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
....................................[sgd]....................................
Associate
Dated: 28 January 2021
Dates of hearing: 21 September 2021 & 12 October 2021 Applicant: Self-Represented Solicitor for the Respondent: Mr Jon Papalia, Australian Government Solicitors
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