ZGPR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 1360

ZGPR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1360 (17 May 2021)

Division:General Division

File Number:          2020/2687

Re:ZGPR

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:17 May 2021

Place:Brisbane

The Tribunal sets aside the reviewable decision dated 21 January 2020, and remits the matter to the Respondent for reconsideration in accordance with the following directions:

(i)the Applicant satisfies the criterion in s 36(1C)(b) of the Act; and

(ii)s 36(2C)(b)(ii) of the Act is not engaged by the Applicant.

….....................[sgd]............................

Senior Member Theodore Tavoularis

CATCHWORDS

MIGRATION – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant engages s 36(2C)(b) of the Migration Act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)
Ministerial Direction 75 - Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)

Ministerial Direction 84 - Consideration of Protection visa applications

CASES

HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392

RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40

WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38

SECONDARY MATERIALS

United Nations Convention Relating to the Status of Refugees

Protocol Relating to the Status of Refugees
Department of Home Affairs, Refugee Law Guidelines (at 30 March 2021)
Department of Home Affairs, Complementary Protection Guidelines (at 30 March 2021)
Department of Foreign Affairs and Trade, Country Report (South Sudan)

Explanatory Memorandum, Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)

DECISION

CATCHWORDS

LEGISLATION

CASES
SECONDARY MATERIALS
REASONS FOR DECISION

BACKGROUND

Procedural history

The present application

ISSUES

LEGISLATION
LEGISLATIVE HISTORY OF SECTION 36(1C)
RESOLUTION OF THE RELEVANT ISSUE: WHETHER THE APPLICANT MEETS THE CRITERION IN SECTION 36(1C)
SUB-ISSUE 1: HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGMENT OF A SERIOUS CRIME?

The meaning of “particularly serious crime”

Did the subject offence for which the Applicant was sentenced on 25 March 2011 constitute “serious damage to property”?

The offending
The delegate’s decision
The Respondent’s arguments before this Tribunal

Consideration

Do the other categories of the Applicant’s offending lead to a finding of a commission of a “serious Australian offence”?

The delegate’s decision
The Respondent’s written material

FINDINGS

DECISION
ANNEXURE A
ANNEXURE B

REASONS FOR DECISION

Senior Member Theodore Tavoularis

BACKGROUND

1. ZGPR (the “Applicant”) seeks review of a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or the “Respondent”) on 21 January 2020 to refuse the Applicant the grant of a Protection (Class XA) (subclass 866) visa (the “Protection visa”) pursuant to s 65 of the Migration Act 1958 (Cth) (the “Act”). The basis of the delegate’s refusal was that, in the delegate’s opinion, the Applicant, having been convicted by a final judgment of a particularly serious crime, was a danger to the Australian community. The delegate therefore found that the Applicant failed to meet the necessary criterion contained in s 36(1C)(b) of the Act necessary for the grant of a protection visa. For substantially the same reasons, the delegate found the Applicant is a person who engages s 36(2C)(b)(ii) of the Act.

   Procedural history

2. The Applicant was born in January 1979 in South Sudan. On the material before the Tribunal, it appears he is a citizen of that country.[1] He arrived in Australia in June 2004 as the holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa (“GSH visa”).[2] This GSH visa was the subject of a mandatory cancellation decision pursuant to s 501(3A) of the Act.[3] The mandatory cancellation decision (“GSH visa cancellation”) was made on 7 March 2016.[4] The mandatory cancellation was based on a finding by the Respondent that the Applicant did not pass the character test defined in s 501(6)(a) of the Act (when read in conjunction with s 501(7)(c)) due to (1) him receiving a sentence of imprisonment of more than 12 months; and (2) him serving a full-time term of imprisonment. On 19 January 2017, the Respondent made a decision not to revoke the mandatory cancellation decision.[5]

   [1]Exhibit T1, T2, pages 20–⁠21 show the delegate for the Minister found that the Applicant is a citizen of South Sudan, citing Article 8(1) of the Southern Sudan Nationality Act 2011 (South Sudan) (“Nationality Act”).

   There are two criteria in Article 8(1) and they are disjunctive because (1) the chapeau to Article 8(1) uses the words “meets any of the following requirements”, and (2) the sub-paragraphs of the Article are separated by the word “or”.

   In relation to Article 8(1)(b), the delegate records that the Applicant’s “detailed written claims”, which were not before the Tribunal, include a claim that the Applicant is of Dinka ethnicity (See Exhibit T1, T2, 13); and the Applicant “declared that he is Dinka and was born in Wau during his Protection visa interview on 19/03/2019.” (See Exhibit T1, T2, page 15). I am therefore satisfied that the Applicant is of Dinka ethnicity. It follows that the Applicant is a citizen of South Sudan based on Article 8(1)(b) of the Nationality Act.

   However, I note that it appears the delegate proceeded on the assumption that the two criteria in Article 8(1) were conjunctive, because in relation to Article 8(1)(a), the delegate wrote that “the fact that [the Applicant’s] parents were born in South Sudan satisfies the only other mandatory criterion stipulated in Article 8(1)(a) of the Act”. The question may not be that simple, because of the link between the definition of “Parent” in the Nationality Act and its dependence on two other South Sudanese Acts. Because of the disjunctive nature of the provision, it is not necessary for me to determine that question.

   [2]Exhibit T1, T2, pages 11–⁠12.

   [3]Ibid.

   [4]Ibid.

   [5]Exhibit R1, page 2, paragraph [4].

3. There followed an application made on 23 February 2017 for judicial review of the mandatory cancellation decision. On 31 May 2018, the Federal Court of Australia made orders, by consent, effecting the remittal of the GSH visa cancellation to the Respondent. On 23 November 2018, a delegate of the Respondent again decided not to revoke the mandatory cancellation of the GSH visa. The Applicant then sought merits review in this Tribunal (differently constituted). On review, this Tribunal affirmed the second mandatory cancellation decision of the GSH visa.

   The present application

4. There followed, on 27 February 2019, an application for the Protection visa. On 19 March 2019, the Respondent invited the Applicant to (1) comment on information that he had been convicted of a particularly serious crime; and (2) comment on whether he satisfied the criteria for the Protection visa in ss 36(1C)(b) and 36(2C)(b) of the Act. The mode of the Applicant’s response to the Respondent’s invitation put to him on 19 March 2019 is best described by reference to the “Protection Visa Decision Record” dated 21 January 2020 which comprises the decision under review in the instant application. In the decision under review, the delegate noted the following:

   “At the Protection visa interview, I advised the applicant that I would send copies of documents to him and invite him to comment. To that end, on 19/03/2019, in accordance with section 57 of the Act 1958, I wrote to the applicant to advise him that I was sending him information which a delegate of the Minister considers would be the reason, or part of the reason, for refusing to grant him a visa. The information consisted of the NPC as well as magistrates’ and judges’ decisions, judgments and sentencing remarks from five trials dating from 17/07/2007 to 17/09/2015. In response, the applicant provided copies of several of the documents listed directly above.”[6]

   [6]Exhibit T1, T2, page 55. Note also that the reference to “copies of several of the documents listed directly above” is a reference to certain documents appearing at dot points spanning pages 54–55 of this Exhibit.

5. On 21 January 2020, the delegate of the Respondent refused the Applicant’s application for the Protection visa. The delegate was satisfied that the Applicant met the “refugee” criterion in s 36(2)(a) of the Act, and the “complementary protection” criteria in s 36(2)(aa) of the Act. With respect to the “refugee criteria”, the delegate was satisfied that the Applicant did fear persecution upon a return to South Sudan as a result of his membership of a particular social group described as “long absent South Sudanese Dinka failed asylum seeker males returning to South Sudan from a western country without family or other support”.[7]

   [7]Exhibit T1, T2, pages 28–⁠29.

6. On 22 January 2020 the Applicant applied to this Tribunal for review of the delegate’s abovementioned refusal decision dated 21 January 2020. Section 500(1)(c) of the Act confers jurisdiction on this Tribunal to review a decision to refuse a Protection visa where that decision is made under s 65 of the Act, if the refusal was grounded on, inter alia, s 36(1C)[8] or s 36(2C)[9] of the Act.

   [8]Act, s 500(1)(c)(i).

   [9]Act, s 500(1)(c)(ii).

7. The instant hearing proceeded before me on 16 and 17 November 2020. The hearing received oral evidence from (1) the Applicant; (2) his Wife; (3) his Daughter; (4) Mr Dashiell Rees;[10] (5) the Reverend M. O. (“Rev M O”); and (6) Mr R M, community leader. The hearing also received written material which was itemised in an Exhibit List, a true and correct copy (anonymised) of which is attached hereto and marked “Annexure A”.

   [10]              Counsellor Advocate, Victorian Foundation for Survivors of Torture, Inc.

8. Following the hearing, directions were made relating to the filing and service of written closing submissions. A true and correct copy of those directions is attached hereto and marked “Annexure B”. On 10 February 2021, the Tribunal reserved its decision after being notified by the parties that they had no further material to file under the terms of the abovementioned post-hearing directions made on 11 January 2021.

   ISSUES

9. There is some ambiguity in the material about the specific issues before the Tribunal. Both the delegate’s ‘Assessment Finding’[11] and the notification letter sent by the Respondent to the Applicant record s 36(1C) as the sole basis for refusal of the Applicant’s Protection visa. However, the delegate explicitly found, apparently as a “further” finding that the same offending which attracted the operation of s 36(1C) also engaged s 36(2C)(b) of the Act.[12]

   [11]Exhibit T1, page 11.

   [12]Exhibit T1, page 64.

10. Section 36(2C) appears to be fatal to an applicant’s case if, and only if, the sole s 36(2) criterion that an applicant falls within is found to be s 36(2)(aa). The juxtaposition and careful consideration of the difference between these two provisions is highlighted by the Tribunal because the s 36(2C) criteria has a more expansive definition of “particularly serious crime” than s 36(1C) (see Act, s 5M; cf. s 36(2C)(ii)).

11. In the present case, it is fortunate that nothing turns on this point. This is because, first, the delegate found the Applicant is a refugee; second, s 36(1C) is substantially similar to s 36(2C)(b) of the Act; and third, there is nothing in the material which suggests the Applicant might have committed a “particularly serious crime” which is not absorbed within the definitions of “serious Australian offence” or “serious foreign offence”.

12. Therefore, the only question before this Tribunal is whether the Applicant is a person whom the Minister[13] considers, on reasonable grounds:

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

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

    [13](or the Tribunal standing in the shoes of the decision-maker).

    LEGISLATION

13. The starting point is s 4(1) of the Act which describes its object thus: “The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”

14. In terms of how the object of the Act is brought into practical effect, s 4 contains the following relevant provisions:

    “(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

    …

    (4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.”

15. Section 29 of the Act provides that the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, and/or remain in Australia. Pursuant to s 13 of the Act, a person who holds a visa is a lawful non-citizen. It follows that a person who does not hold a visa is, pursuant to s 14 of the Act, an unlawful non-citizen.

16. The Applicant is, by definition, an unlawful non-citizen and has thus been held in immigration detention pursuant to section 189 of the Act. Pursuant to s 196 of the Act, because the Applicant is not an unauthorised maritime arrival, the Applicant must be kept in immigration detention until removed or deported from Australia, or alternatively, until granted a visa. If the Applicant is not granted the visa he seeks, his status will remain that of an unlawful non-citizen. In those circumstances, section 198 of the Act has operation such that the Applicant must be removed from Australia as soon as reasonably practicable.

17. Section 45 of the Act facilitates applications for visas. Section 46 of the Act stipulates the criteria for a valid visa application. Schedule 1 to the Migration Regulations 1994 (Cth) (“Regulations”) sets out the specific ways in which a non-citizen applies for a visa of a given class. Section 47 of the Act provides that the Minister must consider a valid application for a visa and must not consider an application that is not a valid application.

18. Briefly summarised, s 65 of the Act provides that, after considering a valid application for a visa, if the Minister is satisfied that:

    (a)the health criteria (if any) for the grant of the visa have been satisfied;

    (b)the other criteria for the grant of the visa have been satisfied;

    (c)the grant of the visa is not prevented by other sections of the Act; and

    (d)any visa application charge payable has been paid,

    the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.

19. If the Minister is minded to grant a visa, s 30 of the Act allows for the granting of both permanent and temporary visas. Further, the Act provides for specific classes within the respective categories of permanent and temporary visas. The specific classes of visas are also capable of prescription by regulations enabled by the Act.

20. With specific reference to protection visas, s 35A of the Act provides for two specific classes of such visas. They comprise (1) permanent protection visas pursuant to s 35A(2) of the Act and (2) temporary protection visas pursuant to s 35A(3) of the Act.

21. Unsurprisingly, the grant of a protection vis requires an applicant to meet certain criteria. They are contained in s 36 of the Act and Schedule 2 to the Regulations.

22. Subsection 36(2) of section 36 of the Act relevantly provides:[14]

    “A criterion for a Protection visa is that the applicant for the visa is:

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

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

    …”

    [14]The Applicant does not claim to engage either of ss 36(2)(b) or (c) – his immediate family members still hold subclass 202 Global Special Humanitarian visas (Exhibit T1, T2, page 17).

23. Given the language of the respective subsections, I will refer to the specific criteria in s 36(2)(a) of the Act as the “Refugee” criteria. I will refer to the specific criteria in s 36(2)(aa) of the Act as the “Complementary Protection” criteria.

24. Most relevantly for present purposes is the criterion for the grant of a protection visa stipulated in s 36(1C)(b) of the Act. It provides:

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

    …

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

25. Section 36(2C)(b) largely mirrors s 36(1C), and relevantly provides:

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

    …

    (b) the Minister considers, on reasonable grounds:

    …

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

26. To determine whether an offence constitutes a “a particularly serious crime” for the purposes of ss 36(1C)(b) and 36(2C), reference must be had to s 5M of the Act which provides:

    “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”.

27. The Respondent does not contend that the Applicant has committed a serious foreign offence. There is no reference to the commission of any such offence in the material.

28. For an understanding of what constitutes a “serious Australian offence”, reference must be had to s 5 of the Act which relevantly provides:

    “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.”

29. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions[15] or the exercise of those powers.[16]

    [15]Act, s 499(1)(a).

    [16]Act, s 499(1)(b).

30. Section 499(2A) of the Act provides that a person or body having functions or powers under the Act must comply with a direction issued pursuant to s 499(1) of the Act. For present purposes, the relevant direction dates from 6 September 2017 at which time the Minister for Immigration and Border Protection[17] issued Ministerial Direction 75 (“Direction 75”). It governs delegates in the process of considering valid applications for Protection visas under section 47 of the Act and in the performance of their functions or the exercise of their powers pursuant to s 65 of the Act to grant or refuse to grant Protection visas.

    [17]A previous title of the Respondent in the instant application.

1. In considering an application for a protection visa, Direction 75 compels delegates to consider (1) whether an applicant meets the Refugee criteria in s 36(2)(a) of the Act; and (2) the Complementary Protection criteria in s 36(2)(aa) of the Act before considering the disqualifying criteria in ss 36(1C) and s 36(2C) of the Act or considering refusal on character grounds under s 501 of the Act.

2. Direction 75’s application to delegates is significant. Direction 75 can be differentiated from other directions such as Ministerial Directions 79 and 84 because it (Direction 75) does not bind the Tribunal for the purposes of merits review. Additionally, directions made pursuant to s 499 of the Act do not personally bind the Respondent. Therefore, the operative effect of Direction 75 does not extend to compelling this Tribunal to undertake its own assessment of whether this Applicant meets the Refugee criteria or the Complementary Protection criteria as a necessary precursor to considering the extent to which the disqualifying criteria in ss 36(1C) and 36(2C) apply to this Applicant.[18]

   [18]See discussion by Senior Member Furnell in WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38 at [175]. See also discussion by Deputy President Boyle in RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123 at [76]–[78] and HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [151]–[153].

3. In any event, it is plain from the decision of the Respondent Minister’s delegate under review that the delegate acted in accordance with Direction 75 and made the necessary assessment about whether the Applicant met the Refugee Criteria and the Complementary Protection criteria prior to considering the relevant disqualifying criteria located in ss 36(1C) and 36(2C) of the Act. In terms of the first part of the delegate’s analysis, the delegate found that the Applicant did indeed satisfy the Refugee Criteria in s 36(2)(a) of the Act. The basis of this conclusion was the delegate’s finding that the Applicant would be confronted with a serious risk of suffering harm because:

   “[…] the applicant does not have established kinship and tribal connections, if returned to South Sudan, the essential and significant reason he will face serious harm would be because of his membership of the [particular social group] ‘long absent South Sudanese Dinka failed asylum seeker males returning to South Sudan from a Western country without family or other support’.”[19]

   [19]Exhibit T1, T2, page 32.

4. The delegate made a similarly favourable finding that the Applicant met the complementary protection criteria in s 36(2)(aa) of the Act. The delegate noted:

   “I find there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to South Sudan, there is a real risk the applicant will suffer significant harm as required by s36(2)(aa) of the Act.”[20]

   [20]Exhibit T1, T2, page 45.

5. As best as I understood the material, I do not consider that either party sought to agitate the delegate’s findings in relation to either of these elements. I will therefore not predicate my findings about s 36(1C) of the Act on the basis of whether or not the Applicant satisfies the criteria in s 36(2)(a) and/or s 36(2)(aa) of the Act.

6. For the sake of completeness I will make reference to a couple of further referential instruments of possible relevance to the instant consideration. Those further referential instruments derive from another Ministerial Direction issued pursuant to s 499 of the Act: Direction 84. This Direction was formally issued by the Respondent Minister on 25 June 2019 and guides delegates who exercise powers, inter alia, under s 65 of the Act to grant or refuse protection visas. This Tribunal is also bound by Direction 84, as I have earlier mentioned.[21]

   [21]See paragraph [32], above.

7. Direction 84 requires decision-makers acting pursuant to s 65 of the Act to take into account the relevant components of documents respectively titled, first, “Refugee Law Guidelines” and second, “Complementary Protection Guidelines” that have been prepared by the Department of Home Affairs; and third, “Country Information Assessments” prepared by the Department of Foreign Affairs and Trade (more commonly referred to as “DFAT Reports”) to the extent that such instruments are relevant to the decision-making exercise being performed by the given delegate or tribunal member.

8. With reference to the abovementioned “Complementary Protection Guidelines”, there is no requirement for further ventilation of them in this decision because there seems to be little or no contest between the parties about the Applicant satisfying the criteria in ss 36(2)(a) and 36(2)(aa) of the Act.

9. With reference to the “Country Information Assessment” (“DFAT Report”), I am of the view that the relevant report in the material relating to Sudan is of limited relevance for present purposes. That said, it is nevertheless pertinent to take the relevant information in the DFAT Report into account to the extent that it talks about potential or actual harm or hardship that the Applicant may confront if returned to Sudan. It is necessary to do so if, for no other reason, than to demonstrate that such hardship represents a strong incentive for the Applicant to not return to his offending ways were this Tribunal minded to grant him the Protection Visa he now seeks.

10. With reference to the abovementioned “Refugee Law Guidelines” issued by the Department of Home Affairs on 1 July 2017, Chapter 14 of those Guidelines relevantly provides the following commentary under the heading “Danger to the community of Australia having been convicted of a particularly serious crime”.

    “In considering s36(1C)(b), each of the following elements should be considered:

    ·was there a crime?

    ·is the crime considered to be particularly serious?

    ·has there been conviction by a final judgement?

    ·does the person remain a danger to the community of Australia?

    While the circumstances of a crime may indicate that the actions represent a danger to the community, decision makers must determine whether the person remains a danger to the community which may take into account any mitigating circumstances, remorse shown by the applicant and any punishments or rehabilitative corrections applied.”[22]

    [22]Department of Home Affairs, Refugee Law Guidelines (at 30 March 2021) [14.3].

    LEGISLATIVE HISTORY OF SECTION 36(1C)

11. The legislative purpose behind the enactment of s 36(1C) of the Act was to codify the effect of Article 33(2) of the United Nations Convention Relating to the Status of Refugees. This Convention was adopted in 1951 and was, in turn, amended in 1967 by the Protocol Relating to the Status of Refugees (“Refugees Convention”).

12. It is worth outlining the relevant components of Article 33 of the Refugees Convention. Article 33(1) says:

    “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

13. Article 33(2) of the Refugees Convention places limits on the extent to which a refugee can avail himself of the grounds stipulated in Article 33(1):

    “The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

14. When the then-new s 36(1C) was sought to be introduced into the Act, the relevant Explanatory Memorandum to the intended amendment said the following:

    “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. This criterion is consistent with the ineligibility criteria under paragraph 36(2C)(b) in relation to the complementary protection provisions in the Migration Act.”[23]

    [23]Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, page 12.

15. The then-Minister’s Explanatory Statement was tabled introducing the proposed s 36(1C) (inserted by the Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Bill more generally) into the Act, he wrote that it created: “…a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention.”[24] The net effect of s 36(1C) is thus to replace the previous methodology of how a person was determined to be a refugee. Previously, such a determination was made by reference to the Refugees Convention. After the introduction of s 36(1C), that determination was able to be made without reliance on the Refugees Convention or any external interpretations of it.

    [24]Ibid, page 10.

16. As will be noted from the abovementioned reference to, respectively, Articles 33(1) and (2) of the Refugees Convention, the determination of whether someone could be found to be a refugee involved the application of a two-step determination. First, there had to be a determination of whether a person “has been convicted by final judgment of a particularly serious crime”. If the answer to that question is in the affirmative, a determination must then be made about whether that person constitutes a danger to the community. An identical two-step approach now appears in s 36(1C) in the determination of whether a person is excluded from the grant of a protection visa.

    RESOLUTION OF THE RELEVANT ISSUE: WHETHER THE APPLICANT MEETS THE CRITERION IN SECTION 36(1C)

17. As alluded to earlier, in substance, there is one issue before this Tribunal. That main issue has two sub-issues which I will consider in turn (to the extent necessary). First, has the Applicant been convicted by a final judgment of a particularly serious crime? Second, if the first question is answered in the affirmative, does the Applicant represent a danger to the Australian community? I will address each issue in turn having regard to all of the evidence now before the Tribunal as particularised at Annexure A of these reasons.

    SUB-ISSUE 1: HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGMENT OF A SERIOUS CRIME?

18. The Applicant initially arrived in Australia on 26 June 2004. His offending history in this country commenced in February 2005, barely 6 months after his arrival. A general overview of his criminal history demonstrates the commission of some 33 separate offences (including offences of non-compliance with existing orders but excluding “called up” sentencing episodes) that were dealt with across some 23 court dates. His offending has been varied in its nature. He has offended in the realms of:

    ·criminal conduct against his wife, including acts of domestic violence and apprehended domestic violence;

    ·contravention of apprehended domestic violence orders;

    ·repeated breaches of parole in relation to this domestically violent offending;

    ·driving offences including repeated offences of drink driving; and

    ·offending in relation to the destruction or damaging of property which is now propounded by the Respondent to meet the definition of a “serious Australian offence” pursuant to s 5(1)(b) of the Act.

19. The offence propounded to constitute a “serious Australian offence” pursuant to s 5(1)(b) of the Act is entered in the criminal history[25] as follows:

    [25]Exhibit T1, T10, page 185.

Court	Court Date	Offence	Court Result
Fairfield Local Court	25 March 2011	Destroy or damage property (dv)	H44044716: imprisonment: 8 months commencing 19/04/2011 concluding 18/12/2011 costs - court: $79 domestic violence - direction made :(eeco 6605) severity appeal lodged (de 90016754)[26]

[26]Note: The result of the Applicant’s “severity appeal” was that the Paramatta District Court confirmed the Applicant’s conviction.

[Formatting adapted]

The meaning of “particularly serious crime”

1. Section 5M of the Act provides that for the purposes of s 36(1C)(b), an offence is a “particularly serious crime” if that offending involved the commission of a “serious Australian offence” or a “serious foreign offence”. There is no suggestion in the submissions or the material more generally that any of the Applicant’s offending attracts the operation of s 5M(b) because none of his offending involved the commission of a serious foreign offence.

2. For the definition of a “serious Australian offence” to be made out, two elements must be satisfied. Relevant for present purposes is the component in the definition of “serious Australian offence” appearing at paragraph (a)(iii) thereof which requires satisfaction of the question of whether “the offence […] involves serious damage to property”.

   Did the subject offence for which the Applicant was sentenced on 25 March 2011 constitute “serious damage to property”?

3. The remaining component of the definition of “serious Australian offence” involves an inquiry as to whether the subject offence constitutes “serious damage to property”. A conundrum from the instant factual matrix arises from the reality that the Applicant’s conduct giving rise to the subject offence was clearly serious, containing, as it did, aggravating features. Further, it cannot be contended that he was so intoxicated that he did not know what he was doing at the time he committed the offence. Clearly, he knew exactly what he was doing. There is no other inference to be drawn from his comment to his then-wife when he said “I don’t give a fuck about the AVO”.

4. The more difficult question is whether the circumstances of the offending satisfy the first limb of the definition of “serious Australian offence” – that is, whether the Applicant’s conduct has resulted in “serious damage” to the relevant “property”. In this case, the relevant property is said to comprise a specific window which the Applicant struck with a closed fist causing that window to break that, in turn, injured his hand to the extent he required surgery to that hand. The term “serious damage to property” is not defined in the Act (or the Regulations) or in the Explanatory Memorandum. The Full Court of the Federal Court of Australia has made it clear that mere damage to property is not sufficient to meet the threshold of the first limb of “serious Australian offence” – that is, the determination of whether the subject offence “involves serious damage to property”.[27]

   [27]SZOQQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2012] FCAFC 40 (“SZOQQ”).

5. To decide this question, I will first examine the facts of the offending as recorded in the material before the Tribunal. Second, I will examine the delegate’s decision. Third, I will set out the Respondent’s contentions and the assistance they have rendered to the Tribunal on this technically difficult matter.

   The offending

6. The best description of the Applicant’s offending, in my view, is to be found in the relevant sentencing remarks. When being sentenced for this offending on 25 March 2011, the learned sentencing Magistrate, Her Honour Ms Seagrave SM, summarised the circumstances of the offence as follows:

   “The facts of the present matters are these: the defendant was, at the time of these offences, committed about 2pm on 25 December 2010 at [suburb redacted] the subject of an apprehended domestic violence order in favour of his wife. One of the prohibitions of the order was that he not engage in conduct that intimidated her. Now in the early afternoon of Christmas Day the defendant attended the premises of the victim as she was about to leave to take their five children to church. At this time the victim sensed the defendant had consumed alcohol. She asked him to leave the premises, an altercation developed, the victim became fearful for her safety, she secured the premises. The defendant commenced yelling and knocking on windows, he wanted to get in. When entry was refused the defendant hit one window with a closed fist causing the window to break causing an injury to his hand which required surgery.”[28]

   [28]Exhibit T1, page 176.

7. The learned sentencing Magistrate also referred to certain procedural issues arising from efforts by the courts to deal with the Applicant for this offending:

   “Now according to the papers before the Court when the defendant was called up the breach was admitted. He subsequently failed to appear. A warrant was issued for his arrest. He apparently appeared at this court in relation to the warrant in early December 2010, about twelve days before these offences. The bond proceedings were adjourned. The bond was revoked by the Local Court on 19 January 2011 and the defendant was sentenced in the Local Court. He subsequently appealed the severity of the sentences imposed. The appeal was successful, the sentences were reduced and as I say the defendant's due to be released on 18 April 2011.”[29]

   [29]Ibid.

8. Further, the learned sentencing Magistrate thought it relevant to refer to the history of the matter in order to identify aggravating features associated with the Applicant’s offending:

   “I refer to the history of the matter because the history is important in terms of the aggravating features associated with the defendant's offending on this occasion. These offences occurred whilst the defendant was subject to conditional release in relation to the two s 9 bonds, now revoked. He was also the subject of a grant of bail in relation to the warrant that had issued in relation to the defendant's failure to appear in respect of the breach proceedings. The offences occurred at the victim's home, a place where she was entitled to feel safe and the offences were committed in the presence of children.

   These factors made the offences more serious. Apart from the pleas of guilty there was little by way of mitigation. There was no evidence of harm to the victim though it must have been a frightening experience for her given that she had been the victim of the defendant's past offending. The damage done to the window was not substantial.”[30]

   [30]Ibid, page 177.

9. The learned sentencing Magistrate also noted that despite the Applicant being under the influence of intoxicating liquor at the time of commission of the subject offence, he clearly knew that what he was doing was unlawful:

   “The evidence demonstrated that the defendant, despite having consumed alcohol, on 25 December knew that he was engaged in wrongdoing on this occasion. In his anger he said to his wife "I don't give a fuck about the AVO". I accepted that the defendant might have been upset by the fact that this claimed arrangement to see his children on Christmas Day was not going to be proceeded with however it was always open to the defendant to act other than in this way towards his wife in the presence of their five young children. This was simply unacceptable behaviour, it is not the sort of behaviour that will be tolerated by the courts and I have no doubt, given the defendant's conviction history for this type of behaviour that he was well aware, at the time of this offending, that his conduct was wrong.”[31]

   [31]Exhibit T1, page 178.

   The delegate’s decision

1. At the relevant pages of the delegate’s decision,[32] there is reference to the broad range of the Applicant’s offending and to what extent each component of his offending satisfies (or does not satisfy) the second limb of the definition of “serious Australian offence”. That is, paragraph (b) of the definition which starts with “(b) the offence is punishable by”.

   [32]Exhibit T1, T2, pages 52–53

2. While there is reference to how the offence relating to the breaking of the window satisfies the second limb of the definition of “serious Australian offence” – due to the applicable sentencing regime deriving from s 195(1)(a) of the Crimes Act 1900 (NSW) – there was no mention or analysis about how that offending satisfied the threshold in the first limb of the definition. That is, how or why it can now be said to constitute “serious damage to property”. The delegate wrote:

   “Under s195(1)(a) of the Crimes Act 1900, the maximum term of imprisonment for the offence of destroying or damaging property (not caused by means of fire or explosives) is imprisonment for five years. This offence is a ‘serious Australian offence’ under s5(1)b because it is punishable by imprisonment for a maximum term of not less than 3 years. The applicant has been convicted of this offence on two occasions at a district court, on 22/03/2011 and on 15/04/2011 respectively.

   […]

   “In summary, the applicant has been convicted by final judgment of two counts of a serious Australian offence, destroy/damage property (DV).”[33]

   [33]Note: the delegate’s reckoning of the number of these offences might, with the greatest respect, require re-assessment.

   The reality of the Applicant’s criminal history is that there many offences which have been dealt with by “conditional release orders” under the Crimes (Sentencing Procedure Act) 1999 (NSW) or its equivalent.

   There are eight-digit “H-numbers” which appear next to each court result in the National Police Certificate, which are of great utility in deciphering the criminal history.

   By my count, there are four such “H-numbers” in the record which relate to “property damage” offences.

   The first, ending in “803” appears to have run its course in September 2007 at the Campbelltown District Court. I note that it first appears on the history on a court event at the Bankstown Local Court on 12 July 2007.

   The second, ending in “061” resulted in a fine on 29 January 2009 at the Hornsby Local Court.

   The third, ending in “479” is the 22 March 2011 matter referred to by the delegate, commenced in the Blacktown Local Court on 18 August 2009. It was called up multiple times, and appears to have only been finalised on 22 March 2011 at the Wagga Wagga District Court as part of a severity appeal (which the delegate duly noted).

   The fourth, ending in “716” is the 15 April 2011 matter referred to by the delegate. It commenced in the Fairfield Local Court on 25 March 2011. It was finally dealt with on 15 April 2011 as part of a severity appeal.

   It is unclear the why the “479” matter (which commenced at a Local Court) was viewed as a candidate for a “serious Australian offence” and the “803” matter was not, even though their procedural history was similar.

   The Respondent’s arguments before this Tribunal

3. First, I begin by noting the Respondent’s SFIC helpfully refers to the authority of SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40.[34] In that case, the section of the Act before the Full Court was the now-repealed s 91U. The componentry of the now-repealed s 91U is substantially similar the componentry now appearing in the first limb of “serious Australian offence” in the Act. As noted by Jagot and Barker JJ :

   [34]Exhibit R1, page 4, paragraph [15].

   50. […] Section 91U(1) and (2) define “particularly serious crime” as a crime involving an offence against Australian law (as relevant) which:

   (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

   […]

   51. The appellant relied on the property damage and immigration offence provisions as indicating that a relatively minor level of danger to the community could nevertheless satisfy the definition of “particularly serious crime”.

   52. The problems with this argument are two fold. First, mere damage to property is insufficient. There must be “serious” damage to property before the offence may be classed as “particularly serious crime. […] The plank in the appellant’s argument which depends on “particularly serious crime” extending to relatively low-level offences is not supported by the terms of s 91U.”.

   [My emphasis and underlining]

4. Second, the Respondent’s SFIC[35] refers to the circumstances of the Applicant’s offending culminating in his breaking of the window:

   “Further, the relevant sentencing remarks dated 25 March 2011 provide that the applicant attended his partner’s house. The applicant’s partner sensed the applicant had been drinking alcohol and asked him to leave. After an altercation, his partner asked him to leave and secured herself in the house. The applicant yelled at the applicant and hit a window of the house with a closed fist causing the window to break. The sentencing judge also referred to the aggravating circumstances of the offence, including that the applicant was subject to conditional release on bonds and subject of a grant of bail.”

   [35]Exhibit R1, page 7, paragraph [27].

5. The difficulty with this contention is that while it more than adequately describes the quite reprehensible conduct of the Applicant culminating in his breakage of the window, it fails to address a certain further observation in the sentencing remarks. The learned sentencing Magistrate, in my respectful view, correctly recorded the aggravating factors of the circumstances of the Applicant’s offending, but nevertheless said this:

   “Apart from the pleas of guilty there was little by way of mitigation. There was no evidence of harm to the victim though it must have been a frightening experience for her given that she had been the victim of the defendant’s past offending. The damage done to the window was not substantial.”[36]

   [My emphasis and underlining]

   [36]T1, page 177.

6. I accept that the totality of the Applicant’s conduct surrounding his breaking of the window was both serious and reprehensible. His wanton breach of the AVO is lamentable. His denial of a safe residential or living environment to his wife is appalling. His contempt for extant orders such as bail and a conditional release on a bond must be viewed very dimly. But none of this conduct constitutes “serious damage to property” for the purposes of the first limb of the definition of “serious Australian offence” in the Act.

7. I have sought to understand the basis of the Respondent’s contention that “[…] the applicant’s conduct amounted to serious damage to property”.[37] As I understood the formulation of that contention, it involves a “gathering up” of either (1) the totality of the Applicant’s offending history or (2) the indicia of the offending sequence that either culminated in, or otherwise included, his breaking of the window. The next step in the formulation seems to be that this allocation of “serious” to the offending is then sought to be applied to the event/conduct specifically comprising the act of breaking the window.

   [37]Exhibit R1, page 7, paragraph [27].

   Consideration

8. I do not think the test for whether conduct is “serious damage to property” is satisfied by the Respondent’s formulation. To my mind, the test is satisfied (or not satisfied) by looking at the extent of the damage or negative effect the offender caused or administered to the property that was damaged. Here, we have the learned sentencing Magistrate telling us “The damage done to the window was not substantial.” We also have the Full Court telling us – upon considering a now-repealed section of the Act that nevertheless contains the identical definitional indicia, in the same statutory context, for the current definition of “serious Australian offence” – that “[…] mere damage to property is insufficient. There must be ‘serious’ damage to property before the offence may be classed as a particularly serious crime.”

9. I do not consider that the breakage of one window in one entire house in a singular offending episode constitutes “serious damage to property”. If “the property” is viewed as just the window, then reference must be had to the remarks of the learned sentencing Magistrate who sentenced the Applicant on the basis that the damage to the window was not substantial. If “the property” is viewed as the entire house, then it would be surely stretching the bounds of common sense to suggest that “not substantial” damage to one window in the context of an entire residential house comprises “serious damage” to that house. In either of these scenarios, it is very difficult to understand how the damage to the subject window either meets or rises beyond the threshold of “mere damage to property” such as to be “serious damage to property” for the purpose of satisfying the first limb of the relevant definition.

10. Perhaps one way of comprehending the Respondent’s contention about what constitutes “serious” damage to property is by having regard to its contention about how to assess an applicant’s risk of recidivism in the context of an overall assessment about whether that applicant represents a danger to the community. In its SFIC, the Respondent said:

    “The words ‘having been convicted’ in s 36(1C)(b) do not limit the inquiry to danger of a kind associated with the previous offending behaviour. It is necessary to look at the person’s conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions which constitute the particularly serious crime […]”[38]

    [Internal citations omitted]

    [38]Exhibit R1, page 5, paragraph [20].

11. It would be unsafe to apply this holistic approach to an assessment of whether the breakage of the window constitutes “serious damage to property”. Specifically, it would be unsafe to approach that exercise on the basis that the Applicant’s antecedent conduct involving, as it did, (1) his breach of the AVO, (2) a denial of a safe living or residential environment to his wife, and (3) respective breaches of bail and a custodial release bond, somehow “taints” or renders the damage to the window as conduct tantamount to “serious damage to property” for the purposes of satisfying the first limb of the definition of “serious Australian offence”. Thus, the exercise of assessing an applicant’s risk of recidivism as a component of any finding about whether the Applicant represents a “danger to the Australian community” should not be conflated with the assessment of whether (for instant purposes) the Applicant’s breakage of the window constitutes “serious damage to property” such as to ultimately render that offence a “particularly serious crime”.

    Do the other categories of the Applicant’s offending lead to a finding of a commission of a “serious Australian offence”?

    The delegate’s decision

12. As I understood the material, there are two primary reference points that answer this question. First, regard should be had to the decision of the delegate. Several things should be said before reading the quote from the decision in the immediately following paragraph:

    (i)the delegate seems to home in on the abovementioned “destroy / damage property (dv)” offence punished in 2011;

    (ii)the delegate undertakes no analysis and appears to make no finding about how the subject property damage offending satisfies the first limb of the definition “serious Australian offence”; and

    (iii)the delegate appears to arrive at a finding that the subject destroy/damage property offending constitutes a “serious Australian offence” only on the basis of the statutory term of imprisonment for that offending.

13. The portion of that decision relating to whether the Applicant has committed a crime that could be regarded as particularly serious is worth quoting in full:

    “Is the crime considered to be particularly serious?

    Under s5(1), a 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.

    Section 5(1) of the Act requires examination of the statutory term of imprisonment rather than the actual sentence imposed, clearly indicating that the objective seriousness of the crime is paramount, not whether there are mitigating circumstances. 

    The applicant’s criminal convictions have been heard exclusively at NSW local courts and district courts.  There are two types of offences dealt with in the local court — summary offences and indictable offences dealt with summarily”.  The maximum term of imprisonment that a local court can impose for a summary offence is two years. While indictable offences which are dealt with summarily can be ‘serious Australian offences’ under s5(1)b, as it is the maximum penalty that can be imposed in any jurisdiction that must be considered, I will consider the offences of which the applicant was convicted and sentenced at district courts, as follows:

    * Wagga Wagga District Court, 22/03/2011

    - Contravene prohibition/restriction in AVO (Domestic)

    - Destroy/damage property (DV)

    * Paramatta District Court 15/04/2011

    - Destroy/damage property (DV)

    - Contravene prohibition/restriction in AVO (Domestic)

    * Paramatta District Court, 17/09/2015

    - Drive with high range prescribed concentration of alcohol – 2^nd + offence

    - Drive motor vehicle during disqualification period – 2^nd + offence

    (The latter case involved the applicant’s failed appeal against the sentences of 12 months imprisonment (with an eight month non-parole period) which had been imposed on him on 30/07/2015 by the Parramatta Local Court).

    Under s14 of the Crimes (Domestic and Personal Violence) Act 2007, the maximum term of imprisonment for the offence of contravening an apprehended violence order (AVO) is two years. This offence is not a ‘serious Australian offence’ under s5(1)b because it is not punishable by imprisonment for life, imprisonment for a fixed term of not less than 3 years or imprisonment for a maximum term of not less than 3 years.

    Under s195(1)(a) of the Crimes Act 1900, the maximum term of imprisonment for the offence of destroying or damaging property (not caused by means of fire or explosives) is imprisonment for five years. This offence is a ‘serious Australian offence’ under s5(1)b because it is punishable by imprisonment for a maximum term of not less than 3 years.  The applicant has been convicted of this offence on two occasions at a district court, on 22/03/2011 and on 15/04/2011 respectively.

    Under s110 of the Road Transport Act 2013, the maximum term of imprisonment for the offence of drive with high range prescribed concentration of alcohol (second or higher offence) is two years. This offence is not a ‘serious Australian offence’ under s5(1)b because it is not punishable by imprisonment for life, imprisonment for a fixed term of not less than 3 years or imprisonment for a maximum term of not less than 3 years.

    Under s110 of the Road Transport Act 2013, the maximum term of imprisonment for the offence of drive motor vehicle during disqualification period (second or higher offence) is one year. This offence is not a ‘serious Australian offence’ under s5(1)b because it is not punishable by imprisonment for life, imprisonment for a fixed term of not less than 3 years or imprisonment for a maximum term of not less than 3 years.

    In summary, the applicant has been convicted by final judgment of two counts of a serious Australian offence, destroy/damage property (DV).”[39]

    [Internal citations omitted; My underlining]

    [39]Exhibit T1, T2, pages 52–53.

14. As will be seen from the underlined parts of the above quoted portions of the delegate’s decision, it would appear that the sole predicating basis of whether a given component of the Applicant’s offending constitutes a “serious Australian offence” is limited to the second limb of the relevant test. To the extent that the offending committed in breach of s 195(1)(a) of the Crimes Act 1900 (NSW) constitutes a “serious Australian offence” there is no discussion or analysis as to how that offending satisfies the first limb of the relevant test, that is, how the breakage of the window constitutes “serious damage to property”.

15. Given the Full Court’s decision in SZOQQ was published some time before the delegate’s decision, it is regrettable that no consideration was given to the meaning of the phrase “involves serious damage to property” by the delegate. To my mind, the way the delegate approached consideration of this Issue 1 has left the Respondent’s solicitors and the Tribunal with limited information about the Applicant’s other offending which might have assisted the Tribunal.

    The Respondent’s written material

16. In its SFIC, the Respondent’s contention about sub-issue 1 (whether the Applicant has been convicted by a final judgment of a particularly serious crime) is predicated solely upon the category of the Applicant’s offending relating to “destroy/damage property (dv)”. Paragraph 27 of the SFIC makes this clear:

    “The respondent contends that the applicant’s conduct amounted to serious damage to property. At the outset and as found by the delegate (at T2a, p 53), the applicant was convicted for the offence of destroying or damaging property which contains a maximum term of imprisonment of five years under s 195(1)(a) of the Crimes Act 1900 on two occasions (22 March 2011 and 15 April 2011 respectively).”

17. As I have mentioned earlier, there is no explanation or analysis about how this component of the Applicant’s offending (or one part of it) constitutes “serious damage to property” and thus how it in turn constitutes a “serious Australian offence”.

18. In its written closing submissions, the Respondent said this:

    “The respondent relies on his RSOFIC at paragraph 27 with respect to this issue and contends that the applicant has been convicted by a final judgment of a particularly serious crime for the purpose of s 36(1C) of the Migration Act 1958 (Cth) (Act). The applicant did not lead any evidence at the hearing to cast doubt on this issue.”[40]

    [40]Exhibit R3, page 1, paragraph [1].

19. With respect, it is not for the Applicant to lead evidence for the purposes of casting doubt on any finding about whether his “destroy / damage property (dv)” offending (or any of his other offending) does or does not fall within the definitional component of paragraph (a)(iii) of the definition of “serious Australian offence”. It is for the Respondent to present evidence to allow the Tribunal to reach the correct or preferable decision. As I have mentioned, I am not able to glean any persuasive analysis in the written material that this particular component of the Applicant’s offending can be safely found to constitute “serious damage to property”.

20. While the Applicant has made a concession that “I accept that I have been convicted of a particularly serious crime”,[41] it does not follow that such a concession automatically causes any of his offending to fall within paragraph (a)(iii) of the definition of “serious Australian offence” such as to constitute “serious damage to property”.[42]

    [41]Exhibit A12, page 1, paragraph [3].

    [42]I further note the importance of a complete record, given other parts of the definition of “serious Australian offence” and indeed “serious foreign offence” use similar qualifying and modifying terminology. See, eg, the use of the terminology “involves violence”, “involves serious damage to property”, “serious drug offence”.

    FINDINGS

1. In terms of whether the Applicant meets the criterion in ss 36(1C) and whether he engages s 36(2C)[43] of the Act, I make the following findings:

   (a)the Applicant is not a danger to Australia’s security;[44] and

   (b)the Applicant has not been convicted by a final judgment of a particularly serious crime because I am not satisfied he has committed a “serious Australian offence” (“Issue 1”) noting:

   (i)his conviction for “Destroy/damage property (DV)” does not satisfy paragraph (a)(iii) of the definition of “serious Australian offence” in s 5(1) of the Act because it is not “serious damage to property”; although

   (ii)that offending does satisfy paragraph (b)(iii) of the definition, because the offence is punishable by a maximum term of imprisonment of not less than three years;

   (iii)to successfully establish the commission of a “serious Australian offence” both limbs (ie paragraphs (a) and (b) of the definition in s 5(1) of the Act) must be satisfied. Here, only the second limb is satisfied by the offending which the Respondent propounds is a “serious Australian offence”.

   (c)Given my findings about Issue 1, it is not necessary to consider Issue 2: whether the Applicant is a danger to the Australian community.

   [43]To the extent it overlaps with the definitions of “serious Australian offence” and “serious foreign offence” in s 5 of the Act.

   [44]Act, s 5 (definition of “serious Australian offence” sub-para (b).

   DECISION

2. The Tribunal sets aside the reviewable decision dated 21 January 2020, and remits the matter to the Respondent for reconsideration in accordance with the following directions:

   (i)the Applicant satisfies the criterion in s 36(1C)(b) of the Act; and

   (ii)s 36(2C)(b)(ii) of the Act is not engaged by the Applicant.

81.     I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...............................[sgd]....................................

Associate

Dated:	17 May 2021
Date of hearing:	16 & 17 November 2020
Applicant:	Self-represented
Solicitor for the Respondent	Adam Cunynghame Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T-Documents (paged 1–246)	-	10 Jun 2020
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1–11)	30 Sep 2020	30 Sep 2020
R2	Respondent’s Written Closing Submissions (5 pages)	4 December 2020	4 December 2020
A1	Applicant’s Statement (4 pages)	14 Oct 2020	6 Nov 2020
A2	Health Assessment Summary Report from Trauma Charity	23 Apr 2020	27 Aug 2020
A3	Health Assessment Summary Report Update from Trauma Charity	25 Aug 2020	27 Aug 2020
A4	Letter of support from Mr R M, Community Leader	1 Sep 2020	27 Aug 2020
A5	Letter of Support from Principal of the school the Applicant’s Children attend	1 Sep 2020	8 Sep 2020
A6	Statutory Declaration from Reverend M O	26 Aug 2020	27 Aug 2020
A7	Statement of the Applicant’s Daughter (duplicates omitted)	Undated	8 Sep 2020
A8	Statement of the Applicant’s Wife	Undated	6 Nov 2020
A9	Counselling referral letter from Uniting	5 Nov 2020	5 Nov 2020
A10	Three IHMS Drug and Alcohol Sessions Attendance Certificates, respectively for: ·     Basic Life Support Demonstration (1 page); ·     Triggers (1 page); ·     Circle of Change (1 page) (duplicate omitted).	Various	27 Aug 2020
A11	Further IHMS Drug and Alcohol Sessions Attendance Certificate for Anger Management	7 Sep 2020	8 Sep 2020
A12	Applicant’s closing statement (3 pages)	10 February 2021	10 February 2021

ANNEXURE B

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)No: 2020/2687

GENERAL DIVISION  )

Re: ZGPR
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:	Senior Member Theodore Tavoularis
DATE:	11 January 2021
PLACE:	Brisbane

The Tribunal DIRECTS:

1. By close of business on 11 January 2021 the Respondent must lodge with the Tribunal and give to the Applicant a copy of the Respondent’s closing submissions previously filed on 2 December 2020.

2. On or before 19 February 2021, the Applicant must lodge with the Tribunal and give to the Respondent a copy of the Applicant’s closing submissions.

1.        

3. On or before 5 March 2021, the Respondent must lodge with the Tribunal and give to the Applicant a copy of any submissions in reply regarding new or novel issues arising from the Applicant’s closing submissions described at Direction 2 herein, or notify both the Tribunal and Applicant that the Respondent does not intend to file any submissions in reply.

.……………………[sgd].………………..
Senior Member Theodore Tavoularis