SHXZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1992 (29 June 2021)

Last Updated: 30 June 2021

SHXZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1992 (29 June 2021)

Division: GENERAL DIVISION

File Number: 2020/6245

Re: SHXZ

APPLICANT

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

RESPONDENT

DECISION

Tribunal: Senior Member Linda Kirk

Date: 29 June 2021

Place: Sydney

The Reviewable Decision of the delegate of the Respondent dated 15 September 2020 to refuse the Applicant a Protection (Class XA) (Subclass 866) visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.

.....................SGD...................................................

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – Protection visa – Refugee convention and legislative framework – Evidence before the Tribunal – Consideration and reasons – Applicant convicted by a final judgement of a particularly serious crime – Applicant danger to the Australian community – Seriousness and nature of crimes committed – Length of sentence imposed – Mitigating and aggravating circumstances – Extent of the criminal history – Prospects of rehabilitation – Likelihood of relapsing into crime – Decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 5, 5M, 36

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

CASES

BHYK and Minister for Immigration and Citizenship [2010] AATA 662

DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636

FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1513

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

LKQD and Minister for Immigration and Border Protection [2018] AATA 2710

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

MVLW and Minister for Immigration and Border Protection [2017] AATA 1557

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665

SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA

WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434

ZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40

SECONDARY MATERIALS

Convention and Protocol Relating to the Status of Refugees

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

REASONS FOR DECISION

Senior Member Linda Kirk


29 June 2021

INTRODUCTION

1. SHXZ (‘the Applicant’) is a 36 year old citizen of South Sudan born in January 1985. She arrived in Australia on 8 September 1999 with her uncle, aunt, brother, and step-sister as a dependant on a Refugee (Class BA) (Subclass 200) visa (‘the refugee visa’).^[1]
2. The Applicant was convicted of numerous offences in the period from April 2003 to March 2018 as listed in Annexure A.
3. On 22 September 2014, the Applicant received a formal counselling letter from the Minister’s Department dated 16 September 2014.^[2] The letter warned the Applicant that any further criminal convictions or other relevant conduct could result in consideration of the cancellation of her refugee visa. The Applicant signed the acknowledgement of having received this warning.^[3]
4. On 16 March 2016, the Applicant’s refugee visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).^[4] The Applicant sought revocation of the mandatory visa cancellation decision and, on 6 May 2016, a delegate of the Minister (‘the Respondent’) decided to revoke the mandatory visa cancellation.^[5] On 6 May 2016, the Applicant signed an acknowledgment that her visa may be cancelled again if she commits further offences.^[6]
5. On 29 November 2016, the Applicant’s refugee visa was cancelled a second time under s 501(3A).^[7] The Applicant sought revocation of that decision. On 27 February 2017 a delegate of the Respondent decided to revoke the mandatory visa cancellation.^[8] On 27 February 2017, the Applicant signed another acknowledgement recognising the possible future consequences should she reoffend.^[9]
6. On 19 April 2018, the Applicant’s refugee visa was cancelled for a third time under s 501(3A).^[10] On 14 August 2018, a delegate of the Respondent decided, under s 501CA(4) of the Act, not to revoke the mandatory cancellation of the Applicant’s refugee visa.^[11]
7. On 9 October 2018, the Applicant lodged an application for a Protection (Class XA) (Subclass 866) visa (‘the protection visa’).^[12] On 15 September 2020, a delegate of the Respondent concluded that they considered on reasonable grounds that the Applicant, having been convicted by final judgment of a ‘particularly serious crime’, was ‘a danger to the Australian community’. Accordingly, the delegate found that the Applicant did not satisfy the criterion in s 36(1C) of the Act and refused to grant the protection visa under s 65 of the Act (‘the Reviewable Decision’).^[13]
8. On 6 October 2020, the Applicant applied to the Tribunal pursuant to s 500(1)(c)(i) of the Act for review of the Reviewable Decision.^[14]
9. The application was heard by the Tribunal on 17 March 2021. The Applicant attended the hearing by video-conference from Villawood Immigration Detention Centre (‘VIDC’). The Applicant was represented by senior counsel and gave oral evidence and was cross-examined at the hearing.
10. The following documents were admitted into evidence at the hearing:
    • Exhibit A1 – Undated Statement by SHXZ
    • Exhibit A2 – Text Message sent by SHXZ’s brother
    • Exhibit R1 - Section 37 T-Documents
    • Exhibit R2 – Supplementary T-Documents in two volumes
    • Exhibit R3 – Further Supplementary Documents
11. The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.

REFUGEE CONVENTION AND LEGISLATIVE FRAMEWORK

12. 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”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
13. 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

(b) 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.

14. 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.

15. 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:

1. 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

2. 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

16. The issues that require determination are whether the Tribunal considers, on reasonable grounds, that:

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

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

EVIDENCE BEFORE THE TRIBUNAL

Criminal offending

17. The Applicant was convicted of numerous offences in the period from April 2003 to March 2018 as listed in Annexure A. Her offending includes property offences, public nuisance, and offences for drunk or disorderly behaviour, obstruction of police officers, possession of drugs, stealing, and breach of probation and community service orders, as well as the more serious offences of Common assault, Robbery in company, Unlawful assault occasioning bodily harm whilst in company, and Serious assault.
18. On 21 March 2013 the Applicant was convicted in the Brisbane District Court of Serious assault person performing lawful duty and sentenced to six months’ imprisonment. The schedule of facts before the Court, to which the Applicant pleaded guilty, records that she was in custody at the Brisbane City Watchhouse and in the process of being fingerprinted when she became verbally aggressive towards the officer and started to throw objects around. Upon being restrained and escorted back to her cell, the Applicant spat at the officers and swung around and slapped one in the face, scratching him with her fingernail in the process.^[15] The sentencing judge, Judge Rafter, noted the officer was ‘naturally concerned’ about the possibility of contracting a communicable disease, as police information indicated the Applicant was potentially HIV-positive.^[16]
19. On the same date, the Applicant was convicted of Robbery in company, Unlawful assault occasioning bodily harm in company, Breaching a bail condition, Contravening a police direction, and Stealing, to all of which she pled guilty.^[17] In relation to the Robbery in company, the sentencing remarks and schedule of facts record that on the night of 4 June 2012, the Applicant together with two men confronted the victim and asked him for a cigarette. When he said he did not have a cigarette, the two men proceeded to slap him and steal his mobile phone. The victim told the Court, almost a year later, that he could not sleep or eat at times, that it was difficult for him to walk on footpaths without thinking he may again be attacked, and that he had been dismissed from his job as he was uncontactable following the assault.^[18]
20. In relation to the Unlawful assault occasioning bodily harm in company, Judge Rafter noted that on 17 October 2012, the Applicant again confronted a random member of the public, a man waiting outside a Chinese restaurant, with two men and asked him for a cigarette. When the man said he did not smoke, the two men assaulted him and the Applicant participated by gouging and scratching the victim in his eye area, causing him significant pain and fear of losing the eye. Judge Rafter accepted that the Applicant played a lesser role in this offence. His Honour found the offending was aggravated by the nature of the offences and the impacts upon the victim, and that the Applicant was subject to a suspended sentence at the time of committing this and the other offences. The victim told the Court that he had suffered depression following the attack and the fear of going blind had caused him major anxiety.^[19] In sentencing the Applicant to an aggregate two-year term of imprisonment, Judge Rafter considered it important that the sentence reflect both personal and general deterrence and the need to protect the community, who were entitled not to be subjected to robberies and assault.^[20]
21. On the Applicant’s most recent court date on 9 March 2018, she pled guilty and was sentenced in the Brisbane Magistrates Court to an aggregate term of imprisonment of 18 months for Urinating in a public place, Contravene direction, Failure to appear in accordance with undertaking, four counts of Stealing and one count of Attempted stealing, Commit public nuisance, and three counts of Common assault.^[21] According to Magistrate Coates, the Applicant’s ‘worst offence’ involved a man walking with his wife and 13-year old daughter. The Applicant slapped the man on the back of the head before proceeding to project blood onto his face from her bleeding hand, causing him to taste blood in his mouth and fear infection. In her Honour’s view, it was a ‘very, very ugly’ offence perpetrated against someone the Applicant did not know, had done nothing to her and was having a quiet night out with his family, and whose life ‘turn[ed] to hell’ as a consequence of the Applicant’s actions.^[22] Her Honour noted that the crime left the man and his daughter completely traumatised. The other assault, committed at a local bakery, involved the Applicant wrapping her arms around a complete stranger and digging her fingers into her neck and slapping her twice. Reflecting on the Applicant’s pattern of offending, Magistrate Coates described her behaviour as continued ‘unrequited hostility and anger towards other people’, and the Applicant turning into the ‘complete devil’ and exhibiting ‘awful’, ‘unnecessarily aggressive’ and angry behaviour, and ‘brazen’ and ‘cunning’ theft-related offending which was ‘most unattractive’.^[23]
22. Magistrate Coates considered that the Applicant’s offending behaviour was aggravated by a number of features: her ‘appalling’ criminal history as a petty thief; the number of times she had breached bail undertakings (seven between January 2004 and July 2016); her breaches of bail from June to July 2016; her complete disregard for the judicial process; and a history of violence reflected in her serious convictions in 2013.^[24] Her Honour also identified that the Applicant had been given a number of non-custodial punishments but that she had ‘religiously’ continued to reoffend. In her Honour’s view, the only thing that had stopped the Applicant from offending was remanding her in custody.^[25] Another aggravating factor, identified by Magistrate Coates in 2018, had been the Applicant’s resolve to continue committing violent offences despite a long list of non-custodial punishments.^[26]

Psychological assessments

23. The Applicant was seen by psychiatrist, Dr Prabal Kar, on 9 June 2010 for the purpose of her sentencing in the Brisbane Magistrates Court the following month.^[27] The Applicant reported to Dr Kar abusing alcohol heavily since 2003 other than during the pregnancies of her two children. She rated 37 out of 40 on the Alcohol Use Disorders Identification Test, which Dr Kar considered indicated the grave severity of her alcohol dependence. The Applicant also reported that she had been a heavy smoker of marijuana since 2001, spent any money she had on marijuana, and smoked up to 20 cones a day. The Applicant admitting to smoking two cones on the morning of her consultation with Dr Kar. She said that she did not see her marijuana use as a problem, saying that she would ‘go crazy without marijuana’ and that she displayed ‘no motivation at all to try to address her heavy marijuana abuse’.^[28]
24. In Dr Kar’s view, the Applicant’s severe alcohol dependence and very severe marijuana dependence aggravated her criminal conduct, but the root of her offending behaviour could be traced to her ‘serious personality pathology with traits of borderline and antisocial personality disorder.’ ^[29] In her view, the Applicant’s underlying personality pathology is aggravated by her use of substances, resulting in her ‘disruptive and aggressive behaviours.’^[30] She noted that the Applicant had been ‘impulsive, had serious anger management problems, and serious substance abuse problems.’^[31]
25. Dr Kar believed that treatment of the Applicant’s behaviour could not begin until her substance abuse is addressed:

No progress can be made on treating her traumas or her so-called anger issues unless her substance abuse is treated first and resolved. The prognosis for successful treatment of her substance abuse appears to be poor, given her history over the last seven years. Adversity in life, much of it directly or indirectly related to her substance abuse, has failed to motivate her to attempt change.^[32]

26. Dr Kar found that whereas if was still possible for the Applicant to address her substance abuse, at that point in time she ‘had no motivation at all’. She stated:

I believe that under a court order she may attend such substance abuse and relapse prevention or drug and alcohol rehabilitation programs. ^[33]

The primary focus of treatment should be achievement of complete abstinence from marijuana and alcohol. In my opinion this is likely to be very difficult. To succeed in this she will need the direction of the court and the support of the parole worker.^[34]

27. Dr Kar opined that the utility of these measures would be questionable given the Applicant’s previous non-compliance with community-based orders and treatment.^[35]
28. The Applicant was assessed by psychologist, Dr John Jacmon, on 8 March 2013 in connection with her appearance before the District Court later that month. In his report dated 11 March 2013,^[36] Dr Jacmon diagnosed the Applicant with Post-Traumatic Stress Disorder (PTSD), which he considered likely resulted from sexual assaults she had suffered during her childhood in Sudan and later by an uncle in 2011. Dr Jacmon considered that the Applicant’s depression likely arose from traumatic memories, and that her alcohol and marijuana abuse was a way of seeking relief from the symptoms of these disorders. To help prevent the future manifestation of the Applicant’s risk behaviours, Dr Jacmon devised a detailed, six-month treatment plan within a framework of Cognitive Behaviour Therapy (CBT), which was expected by Dr Jacmon to ‘markedly reduce the probability of re-offending’.^[37] There is no evidence to indicate that the Applicant took any steps to commence or complete the plan.^[38]

Rehabilitation

29. The Applicant entered VIDC on 24 April 2018. A week after her arrival, she admitted to using buprenorphine and ice, and said that she used all other drugs when offered to her.^[39]
30. On 30 April 2018, the Applicant submitted a revocation request in response to the decision on 19 April 2018 to cancel her visa for a third time under s 501(3A) in which she wrote:

I committed my stealing and common assaults because I was under the influence of meth and have mental illnesses (anxiety, depression and stress).^[40]

31. In answer to a question as to why she believes she will not reoffend she wrote:

I believe that I will not re-offend because I know if I do I will be deported and that will ruin my childrens (sic) lives.^[41]

32. In June 2018 and over the course of the following month, the Applicant is recorded as telling nurses that she had snorted buprenorphine and used ice daily receiving two points injected into the side of her neck by a friend who also shared the needle.^[42] The Applicant is said to have admitted to selling herself for stimulants.^[43] Drug tests during this period returned positives for amphetamines, methamphetamines and benzodiazepines.^[44]
33. The Applicant commenced an Opioid Replacement Therapy (ORT) program in early July 2018. A few days later she admitted to using buprenorphine and ice.^[45] Drug tests in the following months returned positive indications for methamphetamines and benzodiazepines.^[46]
34. On 9 October 2018, the Applicant lodged her application for the protection visa.^[47] In a letter dated 10 October 2018, she wrote:

In these last few months since I have been on the program I have been able to reflect on the life I once lived. I am also aware that addiction is an ongoing illness and it needs to be maintained through the maintenance program and drug and alcohol counselling. For the first time in my life I actually feel I will be able to cope and become a law abiding citizen.^[48]

35. In her protection visa interview on 12 November 2018, the Applicant stated that she had changed, and grown up and ‘will not do the same behaviour again’.^[49] The Applicant told the Tribunal that she does not have any intention of getting back in contact with any of the people that she formerly associated with, and with whom she committed offences.^[50] She stated:

I’m grown up. I’m 36 years old now ... It’s time to grow up and get a job ... be responsible.^[51]

36. In the two years to November 2020, the Applicant is recorded as missing or refusing her methadone injection on approximately 48 occasions.^[52] In the same period, the Applicant refused to engage with anger management counselling,^[53] and missed several consultations with psychiatrists.^[54]
37. On 18 November 2020, she switched from taking from Suboxone (methadone) to Buvidal.^[55] In her oral evidence the Applicant agreed that on 24 November 2020 she had a meeting with the medical staff at VIDC and she told them she had gone back to injecting ice because it helped her to lose weight, stopped her panic attacks and helped her to focus.^[56] She later told the Tribunal that this was not true, and she had told a ‘lie’ to the staff so she could be put onto the buprenorphine program.^[57] She agreed that she likes taking buprenorphine because it makes her high and she does not crave any other drugs.^[58]
38. The Applicant’s current treatment program involves her receiving buprenorphine injections once a month and she received her third injection in early March 2021. Her medical records note that she is ‘stable at the current dose.’^[59] She told the Tribunal she will be on this program until she is stable and will remain on it if she leaves detention.^[60] She also sees a psychiatrist for counselling, most recently a month ago.^[61]
39. The Applicant was admitted to hospital on 18 December 2020 after she ‘[p]resented to the detention centre guards ... following one week of escalating behaviour, aggression and bizarre and erratic behaviour after methamphetamine use for four to five days leading up to [the] presentation.’^[62] She confirmed during cross-examination that she had been taking methamphetamines for four to five days before this episode occurred.^[63] However she consumed only a ‘tiny bit’ which she injected.^[64]
40. The Applicant confirmed that she was admitted to hospital again on 24 December 2020 following a relapse of schizophrenia in the context of drug use.^[65] She agreed that this followed her disclosure of non-compliance with her drug treatment, and her consumption of methamphetamines and cannabis the day before the incident.^[66]
41. The Applicant saw the nurse at VIDC on 14 January 2021 who recorded that she was injecting ice and smoking cannabis. On 15 January 2021 the Applicant was admitted to hospital a third time for ‘relapse of recurrent drug induced psychosis secondary to methamphetamine use.’^[67] She was discharged on 18 January 2021. The Applicant told the Tribunal that she had the psychotic episode as she was not taking drugs.^[68]
42. On 19 January 2021, the Applicant saw the nurse at VIDC who asked her about her drug use and she said she had been ‘using small amounts of methamphetamines daily or more frequently by injections.’^[69] She also told the nurse that she had ‘smoked ice and cannabis’ since her return from hospital. In her oral evidence, the Applicant denied this, and said that she has not taken any drugs since she left hospital.^[70]
43. The Applicant saw a psychiatrist on VIDC on 21 January 2021, who recorded the following:

Reports using Ice and Buprenorphine; Injecting these; Uses cannabis sometimes but does not like this because she states it brings back bad memories from past; On Buvidal as OSTP but is abusing illicit Bupe on top; Has appointment to see D&A this afternoon.

Describes visual and auditory hallucinations; No clear delusional ideas - report of ‘paranoia’ is more a description of anxiety; No suicidal ideation; Limited insight - states that Ice and Bupe are good for her and is not motivated to stop; Does not accept that the drug use is affecting her mental health.^[71]

44. On 4 February 2021, the Applicant missed her appointment scheduled with the psychiatrist at VIDC because she ‘didn’t feel well enough’ to attend.^[72] On the same day she did not attend her scheduled mental health assessment with the mental health nurse as she did not ‘feel like it.’^[73]
45. In her statement dated 12 March 2021 and in her oral evidence at the hearing, the Applicant stated that she is currently taking Brexpiprazole and Olanzapine for her anxiety and depression, and she has taken this medication since 2011.^[74]
46. The Applicant confirmed that if she moves back to Brisbane, she will continue the drug program for her ice addiction.^[75] She will attend the Biala City Community Health Centre that she used to go to prior to her incarceration.^[76]
47. The Applicant told the Tribunal that she no longer drinks alcohol. She was asked whether she had had a chance to have any counselling for her alcohol use since she has been in immigration detention, and she said she had on one occasion.^[77]

Incidents in immigration detention

48. Serco records record that the Applicant has been involved in a number of incidents in detention, including an assault of a detainee using her open-palmed hand in February 2021.^[78] There are also records of verbal altercations and abuse by the Applicant towards other detainees and VIDC staff in December 2020.^[79] During cross-examination Applicant confirmed that in December 2020 she picked up a chair intending to throw it at a co-detainee, but she did not do so.^[80] The Applicant was not charged for any of these incidents in immigration detention.

Employment and courses

49. The Applicant told the Tribunal that she has worked in the past as a cleaner and a model. She last worked in 2008.^[81] She has not done any work programs in immigration detention, but she has attended numeracy, maths, beauty and English classes.^[82] During cross-examination, the Applicant confirmed that she has attended three numeracy classes and one literacy class at VIDC in the last couple of years.^[83] She is confident that if she returns to Brisbane she will be able to get work as a cleaner with her old employer, or her sister can get her a job in the kitchen at the nursing home where she works.^[84]

Family members and friends

50. In her oral evidence, the Applicant confirmed that she has two children: a daughter aged 14 years and a son aged 12 years. The children were taken from her by DOCS in 2008 and since this time they have lived with her mother-in-law in Holland Park in Brisbane.^[85] She speaks to them every three months via Facetime.^[86] The father of her children is deceased.^[87]
51. The Applicant speaks to her brother every day via Messenger. If she is released into the community, she will be able to live with her brother in Redbank Plains in Brisbane.^[88] Her brother has two daughters aged three and 10 years. The Applicant’s uncle, who is like a father to her, lives with her brother and she speaks to him now and then.^[89] She also speaks to her uncle’s wife (her mother) and her step-sister.^[90] She lived with her uncle and his family from her arrival in 1999 until 2006 when she married.^[91]
52. The Applicant confirmed she was married to an Australia citizen in 2015 but she is no longer in contact with him.^[92] She lived with her husband before she was arrested in 2017. ^[93]

CONSIDERATION AND REASONS

53. In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1, at [12], Allsop CJ and Katzmann J recognised that Art 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.

54. 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 at 12:

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.

55. 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.

56. 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 her to the grant of a protection visa.

Has the Applicant been ‘convicted by a final judgment of a particularly serious crime’?

57. The Applicant has been convicted of offences which meet the threshold of being a ‘serious Australian offence’ as they involved violence against a person and carry a maximum prison sentence of not less than three years. These offences include the following offences for which the Applicant was convicted under the Queensland Criminal Code Act 1899:
    • Common assault - section 335 - punishable by imprisonment for three years;
    • Robbery in company - section 411 - punishable by imprisonment for life;
    • Assault occasioning bodily harm - section 339 - punishable by imprisonment for ten years; and
    • Serious Assault - section 340 - punishable by imprisonment for seven years.
58. Based on this evidence, the Tribunal is satisfied that the Applicant has been ‘convicted by a final judgment of particularly serious crimes’, which are ‘serious Australian offence[s]’ under s 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 a maximum term of imprisonment of not less than three years: s 5(1)(b)(iii) of the Act. Each of these four offences are an offence involving violence against a person, punishable by a term of at least three years’ imprisonment.

Is the Applicant ‘a danger to the Australian community’?

59. The determination of whether the Applicant poses a ‘danger to the Australian community’ does not involve the exercise of a discretionary power like s 501 of the Act. 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 [2017] AATA 1557 (‘MVLW’) at [29]-[32]. 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 [2012] FCAFC 40 at [27].
60. Both parties 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 [2009] AATA 512; (2009) 110 ALD 434 (‘WKCG’) and by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 (‘DOB18’).^[94]
61. In WKCG, Deputy President Tamberlin articulated the following meaning of ‘danger’ in the context of s 36(1C)(b) of the Act, at [31]:

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

62. 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.^[95] 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 [2010] AATA 662 (‘BHYK’); MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 (‘MVLW’); LKQD and Minister for Immigration and Border Protection [2018] AATA 2710 (‘LKQD’); and RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665.
63. In DOB18 Logan J, by way of obiter at [83], articulated his interpretation of ‘danger’ in the context of s 36(1C) of the Act. His Honour observed that ‘danger’ and ‘risk’ are qualitatively different concepts at [72]:

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.

64. 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.^[96] 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)

65. 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, and the Applicant agreed, that the differing approaches of Deputy President Tamberlin and Logan J can be reconciled.^[97] The Respondent stated:

In the Minister’s submission, there is no material departure in the approach of Logan J in DOB18 as against the reasoning of DP Tamberlin in WKCG. Insofar as Logan J’s standard requires a present risk of danger, DP Tamberlin at [31] observed that danger in Art 33(2) of the Refugees Convention, on which s 36(1C) was modelled, calls for the decision-maker to have regard ‘to the future as well as the present’ and that the provision ‘is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future’. As for a serious risk of danger, DP Tamberlin observed that a ‘real or significant risk or possibility of harm’ was sufficient – that is, a ‘real or significant risk of harm’ or a ‘real or significant possibility of harm’. That standard conforms with that of Logan J, who at [82] in DOB18 accepted that the concepts of ‘real risk’ and ‘danger must be real’ were consistent with his view that ‘danger’ carried a qualitatively different meaning to ‘risk’.^[98]

66. In SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1515 at [39], Senior Member Dr M Evans-Bonner agreed that the views of DP Tamberlin and Logan J can be reconciled in this manner and this Tribunal respectfully agrees.
67. In LKQD v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2019) 167 ALD 17 Jackson J at [57] 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’ at [62].
68. In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (‘KDSP’) at [54]-[55], 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.

69. 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.
70. 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’ at [26] - [27]:

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 ...

71. 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) [2021] AATA 1513 at [124] this list should not be taken to be exhaustive and regard must be had to all the circumstances of each individual case.

Seriousness and nature of the crimes committed

72. The Applicant concedes that she has committed some serious crimes that have involved violence, that the victims of her crimes suffered physical and mental harm, and these offences occurred over a fairly extensive period of time.^[99] The evidence before the Tribunal is that the Applicant’s offences, particularly those for which she was convicted in March 2013 and March 2018, have involved violent incidents and aggressive acts against random members of the public and a police officer. As Magistrate Coates noted in her sentencing remarks in March 2018, the Applicant’s offending demonstrates a pattern of ‘unrequited hostility and anger towards other people’, and ‘unnecessarily’ aggressive and angry behaviour.^[100] The Applicant’s particularly serious crimes identified above were aggravated by the fact that her violent, intimidatory and menacing conduct was largely unprovoked and targeted at members of the public who are entitled to safety in going about their daily lives and to not be subjected to robberies and assault. The Applicant’s victims have experienced ongoing psychological distress and emotional harm as a result of her actions, which further adds to the seriousness of her offending.
73. The numerous terms of imprisonment to which the Applicant has been sentenced since July 2012 indicate the objective seriousness of her offending. In their sentencing remarks, both Judge Rafter in March 2013 and Magistrate Coates in March 2018, were respectively convinced that a term of imprisonment was the only appropriate sentence given the Applicant’s repeated offending in breach of non-custodial sentencing options. Magistrate Coates’ finding in March 2018 that the Applicant is only capable of refraining from criminal conduct when physically remanded in custody further indicates the objective seriousness of her criminal offending.

Length of the sentence imposed

74. Following her first conviction in April 2003, the Applicant received a two-year probation order, which she breached within four months. Over the following decade the Applicant received fines, community service, probation orders and non-custodial sentences. Her record during this period is marked by a pattern of non-compliance with community-based orders and bail conditions. It was not until July 2012 that the Applicant was sentenced to a term of imprisonment for a period of one month. In March 2013 the Applicant was convicted and sentenced by the District Court to an aggregate term of two years imprisonment and in March 2018 the Magistrates Court sentenced her to an overall term of 18 months’ imprisonment. The Applicant contends that the terms of imprisonment imposed on the Applicant in March 2013 and March 2018 respectively were at the low end of the range in relation to the respective offences. The Tribunal notes that the maximum sentence for Robbery in company is life imprisonment and that the Applicant was given a twelve-month sentence for this offence in March 2013, which indicates the offence falls toward the lower end of the spectrum. However, imposing a custodial sentence of imprisonment is generally a sentence of last resort. In PNLB and Minister for Immigration and Border Protection [2018] AATA 162 the Tribunal noted that, ‘[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.’ Whilst accepting that the sentences imposed on the Applicant were at the low end of the range, the Tribunal finds that the imposition of a term of imprisonment is an objective indicator of the seriousness of her offending.

Mitigating and aggravating circumstances

75. As noted above, the Applicant’s particularly serious crimes were aggravated by the fact that they involved unprovoked attacks directed against members of the public and against a police officer. Both Judge Rafter and Magistrate Coates noted that there were multiple aggravating factors relevant to the Applicant’s offending, including that she had failed to comply with bail undertakings and continued to re-offend despite being given multiple suspended sentences. Judge Rafter considered that the nature of the Applicant’s offences, and the significant impact upon the two victims who provided victim impact statements to the Court, were also aggravating factors.
76. The Applicant describes some of her criminal behaviour as ‘street offences’ or ‘low level offending’.^[101] This description is apt for the Applicant’s convictions for drunk or disorderly behaviour, fare evasion, public nuisance and urinating in a public place. However, the Applicant’s violent and menacing behaviour towards her victims in the course of her theft-related street offending included intentionally projecting blood onto her victim’s face and mouth and instilling in him and, on another occasion a police officer, the fear of contracting a blood-borne disease. Magistrate Coates’ description of the Applicant’s offending behaviour in June 2012 was her turning into the ‘complete devil’ and committing a ‘very, very ugly’ offence.
77. The Applicant contends that her guilty pleas and her mental health and substance abuse issues are factors that mitigate the seriousness of her offending.^[102] In his sentencing remarks in March 2013 Judge Rafter noted that the Applicant’s guilty plea, her PTSD and her traumatic background were mitigating factors in relation to the Applicant’s offences. In March 2018, Magistrate Coates, similarly noted ‘[i]t is a shocking thing to come from South Sudan at 14.’ On the basis of the psychological reports of Dr Kar and Dr Jacmon noted above, the Tribunal accepts that the Applicant suffers from PTSD, depression, and substance abuse disorder, and that she had an extremely traumatic childhood in South Sudan which included being the victim of multiple rapes by family members, and that a combination of these factors have significantly contributed to her offending. However, these factors do not lessen the objective seriousness of the Applicant’s criminal offending, nor do they decrease the likelihood she will pose a danger to the community, particularly when the evidence indicates that her mental health conditions and drug dependence remain insufficiently addressed.

Extent of the criminal history, period over which prior crimes took place, and criminal record as a whole

78. The Minister contends that the Tribunal should have regard to the entirety of the Applicant’s offending, not just the crimes that constitute ‘particularly serious crimes’ under s 5M of the Act. In WKCG, Deputy President Tamberlin found at [29] that the words ‘having been convicted’ in s 36(1C)(b) do not limit the inquiry to danger of a kind associated with the offence(s) constituting a ‘particularly serious crime’. This reasoning was adopted by the Tribunal in MVLW at [44] and MHCZ at [20] and is respectfully adopted by this Tribunal.
79. The Applicant arrived in Australia in September 1999 at the age of 14 years. Her first conviction was recorded in April 2003 for breach of a probation order to which she was made subject following her being found guilty of the serious assault of a police officer and obstruction of a police officer on 15 December 2002. In the years following until she was transferred to immigration detention in 2018, the Applicant was convicted of offences in every year, with the exception of 2007 and 2008. During the period April 2003 to March 2018 the Applicant was found guilty of some 105 discrete offences, for which 95 convictions were recorded. A not insignificant number of these convictions related to the Applicant’s repeated violation of probation and community service orders and suspended sentences, which resulted in terms of imprisonment. The extent of the Applicant’s criminal history, the period of time over which she offended, and her criminal record in its totality weigh strongly in favour of 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

Prospects of rehabilitation

80. The Applicant concedes that her criminal history and relapses are such that her prospects of rehabilitation may be considered ‘guarded’, however she claims ‘there is no doubt that if she is provided with adequate treatment for her mental health and addiction, then [her] chances of rehabilitation are higher.’^[103] The evidence before the Tribunal is that a significant contributor to the Applicant’s aggressive and violent criminal offending is her extreme alcohol dependence and significant drug abuse problem. In her 2010 report, Dr Kar wrote that in her opinion the Applicant’s ‘anger management issues are partly because of her personality, but mostly because of her abuse of alcohol and other drugs.’ In her view, the Applicant’s prognosis for successful treatment of her substance abuse problem then appeared poor, as despite facing adversity related to her substance use in the previous seven years, including having her children removed from her care, she had not been motivated to attempt change. Dr Kar opined that ‘without assertive supervision and monitoring’ the Applicant ‘may behave in a disruptive and aggressive way while intoxicated and find herself in similar troubles with the law.’ In the eight years following Dr Kar’s report, the Applicant continued to offend, including committing the particularly serious crimes referred to above, for which she was sentenced to terms of imprisonment in March 2013 and March 2018.
81. On numerous occasions during this period the Applicant gave assurances to the courts and the Department that she was undertaking or was planning to undertake treatment for her addictions. For example, in March 2016 she wrote a letter to the court in which she stated that she was going to seek counselling and drug programs at Biala City Community Health Centre and Prince Charles Hospital.^[104] In her revocation request following the mandatory cancellation of her visa in March 2016 the Applicant asserted that she had ‘now been rehabilitated’ having undergone treatment in prison, on parole and in VIDC.^[105] In December 2016 she wrote in respect of her request for revocation of the cancellation decision that she had applied to do substance abuse and AA courses in gaol.^[106] In January 2018, the Applicant wrote that since she had been incarcerated in Brisbane Women’s Correctional Centre she realised that she was allowing her life to ‘spiral out of control’ and that her problems were all related to her illicit drug use. She stated that she was no longer using drugs and her head was clear and she would be returning home to a supportive partner and would attend Narcotics Anonymous and drug and alcohol counselling. In June 2018 the Applicant wrote that she had stopped taking drugs and having been in detention three times had ‘changed [her] life’ and she is ‘going to do things differently.’^[107]
82. The Applicant’s evidence to the Tribunal is that she has not used any illicit drugs since 2018.^[108] However, reports by medical practitioners at VIDC record that the Applicant told them she has continued to take drugs since entering immigration detention. In June and July 2018, the Applicant told nurses that she had snorted buprenorphine and used ice daily receiving two points injected into the side of her neck.^[109] Drug tests during this period were positive for amphetamines, methamphetamines and benzodiazepines.^[110] A few days after commencing a Opioid Replacement Therapy (ORT) program in July 2018, the Applicant admitted to using buprenorphine and ice.^[111] Drug tests in subsequent months returned positive indications for methamphetamines and benzodiazepines.^[112] The Applicant was non-compliant with treatment in the two years to November 2020, having been recorded as missing or refusing her methadone injection on approximately 48 occasions.^[113]
83. On 18 November 2020, the Applicant commenced a Buvidal program.^[114] However the evidence before the Tribunal is that she has not ceased taking illicit drugs since starting this treatment. As recently as January 2021 she admitted to a VIDC psychiatrist to continuing to inject ice and buprenorphine and using cannabis.^[115] In the period from 18 December 2020 to 15 January 2021 the Applicant was admitted to hospital on three occasions for treatment for ‘relapse of recurrent drug induced psychosis secondary to methamphetamine use’ which was preceded by ‘one week of escalating behaviour, aggression and bizarre and erratic behaviour.’
84. The Applicant contends that ‘the road to rehabilitation is never straight and that there are understandably relapses particularly when one takes into account the context in which [she] finds herself.’^[116] She acknowledges that ‘she is a person who would require a good deal of support in the community.’^[117] The evidence before the Tribunal is that the Applicant’s brother has said she will be able to live with him if she were released into the community, and she intends to seek ongoing treatment for her substance use disorder at Biala City Community Health Centre.
85. Based on the evidence before it, the Tribunal cannot be satisfied that the Applicant has made adequate progress towards being rehabilitated in relation to her severe substance abuse disorder. Whereas she is ‘stable’ on her current dose of Buvidal, the evidence is that she is continuing to use illicit drugs in addition to the medication given her under the ORT program. Her recent admissions to hospital on three occasions in the course of a month following relapses in relation to her drug use, does not bode well for her successful recovery from her long-term drug addiction in the foreseeable future. Accordingly, the Tribunal finds that the Applicant has not sufficiently rehabilitated such that it can be said with any confidence that she will not continue to relapse into drug abuse should she re-enter the community. In light of the strong causal link between the Applicant’s substance disorder and her criminal offending, the Tribunal is not satisfied that she will not pose a ‘danger to the Australian community’ should she not continue on her path to recovery when unsupervised in the community.

Risk of re-offending and recidivism

86. In relation to the Applicant’s risk of re-offending, there is no risk assessment before the Tribunal. The Applicant contends that she has a number of strong motivations against re-offending, being her desire to have a close relationship with her children and her fear of harm if she were returned to Sudan.^[118] In addition, she claims that the hardship she has endured by the long periods of immigration detention act as a strong incentive for her not to re-offend should she be permitted to remain in Australia.^[119]
87. The evidence before the Tribunal is that the Applicant has frequently cited her desire to be with her children as a factor strongly motivating her not to re-offend.^[120] In her revocation request in April 2016, the Applicant wrote that she did not pose a threat and that she had two children for whom the consequences of her being removed from Australia would be devastating.^[121] In December 2016 she wrote that her children and family were motivations for the change in her behaviour.^[122] Despite these assurances, the Applicant continued to offend upon her release and cause physical and psychological harm to the victims of her violent behaviour.
88. The Applicant received repeated warnings from the Department over an extended period of time that her criminal conduct could lead to her being returned to South Sudan. She was first warned in September 2014 that any further criminal convictions could result in consideration of the cancellation of her refugee visa, and her visa was twice cancelled in 2016 as a result of her criminal conduct. She benefited from the revocation of these cancellations of her visa, until it was cancelled again for the third time in 2018. The Tribunal finds that the Applicant’s claimed fear of being returned to South Sudan should have been a strong motivation for her to cease criminal offending. The fact that it was not in the past a strong incentive against her reoffending markedly lessens the likelihood it will be a factor motivating the Applicant not to offend in the future should she be permitted to remain in Australia.

Likelihood of relapsing into crime

89. The Tribunal accepts that the Applicant’s assertions made in her representations to the Department and in her evidence and submissions to the Tribunal are genuine, and that she sincerely believes and intends that she will not re-offend. However, the fact that the Applicant’s substance abuse condition remains a significant challenge in the controlled environment of immigration detention, and her previous lack of success in undertaking the programs and treatment she requires when living in the community, means that it cannot be said with any confidence that she will continue the treatment she needs if she is permitted to re-enter the community. If the Applicant is granted a protection visa, she will resume her life without the restrictions or supervision requirements associated with release on parole. There will be no orders in place requiring her to continue with her current treatment program or to report to hospital or a mental health practitioner for regular monitoring of her progress. Accordingly, as noted above, there is a considerable risk that the Applicant will not continue her drug treatment program, and this will lead her to re-offend and cause harm to members of the Australian community.
90. In considering the risk of the Applicant re-offending, the Tribunal has had regard to the evidence before it that during her periods in immigration detention, the Applicant has continued to exhibit violent, aggressive and other anti-social behaviours. This has included yelling abuse at IHMS staff dispensing medication and at other detainees, as well as physical altercations with other detainees. Whereas the Applicant’s behaviour in immigration detention has not been the subject of any charges, her aggressive conduct indicates that she continues to have difficulty in controlling her anger and stopping herself from taking her frustrations out on others.
91. 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 she presents a real and significant possibility of ‘danger to the Australian community’:

(a) The nature and seriousness of some of the Applicant’s offences, which includes menacing and violent acts against random members of the public and police officers.

(b) The aggregate terms of imprisonment imposed on the Applicant in March 2013 and March 2018, noting that a term of imprisonment is a sentence of last resort.

(c) The Applicant’s repeated failure to comply with court orders and bail undertakings and her re-offending despite being given multiple suspended sentences.

(d) The extent of the Applicant’s offending during the period April 2003 to October 2017 for which she was found guilty of some 105 discrete offences, with 95 convictions recorded.

(e) The strong causal relationship between the Applicant’s severe substance abuse disorder and her criminal offending, and her unsuccessful adherence to treatment programs to date that will assist her to recover from this condition.

(f) The Applicant’s risk of reoffending and recidivism and the likelihood of her relapsing into crime, based on her ongoing aggressive behaviour in immigration detention, the high risk that when unsupervised in the community she will not continue with the drug treatment program she requires, and the likelihood that she will be unable to control her anger causing her to again engage in criminal offending causing harm to members of the Australian community.

CONCLUSION

92. 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:

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

(b) is a danger to the Australian community.

DECISION

93. The Reviewable Decision of the delegate of the Respondent dated 15 September 2020 to refuse the Applicant a Protection (Class XA) (Subclass 866) visa under s 65(1)(b) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 93 (ninety -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

.......................SGD.................................................
Associate

Dated: 29 June 2021

Date of hearing:	17 March 2021
Counsel for the Applicant:	Mr G Barns SC
Solicitors for the Respondent:	Mr K Eskerie

Annexure A
Court date	Offence	Penalty imposed
16 April 2003 (Holland Park Magistrates Court)	Obstruct police officer (on 15/12/02)	No conviction recorded, 2 years’ probation – to attend anger management program
	Serious assault - assault/resist/obstruct police officer (on 15/12/02)
22 August 2003 (Holland Park Magistrates Court)	Breach of probation order imposed on 16/04/03	Convicted, $250 fine, 5 days’ imprisonment (in default)
26 March 2004 (Brisbane Magistrates Court)	Breach bail granted undertaking (on 29/01/04)	Convicted, $200 fine, 2 days’ imprisonment (in default)
14 April 2004 (Brisbane Magistrates Court)	Enter dwelling with intent to commit indictable offence + break (on 05/01/03)	No conviction recorded, $420 recognizance to be of good behaviour for 9 months
19 August 2004 (Brisbane Magistrates Court)	Behave in disorderly manner (on 12/01/04)	No conviction recorded, 90 hours community service
	Assault police officer (on 12/01/04)
	Possession of property suspected stolen or unlawfully obtained (on 25/03/04)
	Obstruct police officer (on 25/03/04)
24 June 2005 (Holland Park Magistrates Court)	Breach of probation order imposed on 16/04/03	Convicted of breach, $400 fine, 8 days’ imprisonment (in default), order revoked, resentenced for original offences - convicted, $800 fine, 16 days’ imprisonment (in default)
14 October 2005 (Holland Park Magistrates Court)	Breach of community service order imposed on 19/08/04	Convicted of breach, $200 fine, 4 days’ imprisonment (in default), order revoked, resentenced for original offences - convicted, $400 fine, 9 days’ imprisonment (in default)
25 September 2006 (Brisbane Magistrates Court)	Breach of order (served on 10/09/06)	Convicted, $300 fine, 12 days’ imprisonment (in default)
8 November 2006 (Brisbane Magistrates Court)	Breach of domestic violence order (served on 04/07/06)	Convicted, $350 fine, 7 days’ imprisonment (in default)
29 June 2009 (Brisbane Magistrates Court)	Commit public nuisance (on 26/05/09)	Convicted, $250 fine
8 July 2010 (Brisbane Magistrates Court)	Commit public nuisance (on 21/03/10)	Convicted, 18 months’ probation, $495 restitution
	Wilful damage (on 18/08/09)
	Wilful damage (on 25/08/09)
	Assault or obstruct police officer (on 12/04/10)
	Failure to appear in accordance with undertaking (on 06/05/10)
	Evade fare (on 21/03/10)
	Contravene direction or requirement (on 12/04/10)	Convicted, $150 fine, 2 days’ imprisonment (in default)
7 December 2010 (Brisbane Magistrates Court)	Breach of probation order imposed on 08/07/10	Order revoked, resentenced for original offences - convicted of breach and on resentence, $500 fine, 10 days’ imprisonment (in default)
8 February 2011 (Brisbane Magistrates Court)	Drunk or disorderly in premises to which a permit/ licence relates (on 01/01/11)	No conviction recorded, $250 fine
23 May 2011 (Holland Park Magistrates Court)	Assault or obstruct police officer (on 08/05/11)	Convicted, 12 months’ probation
	Drunk or disorderly in premises to which a permit/ licence relates (on 08/05/11)	Convicted, $400 fine, 4 days’ imprisonment (in default)
	Fail to leave licensed premises (on 08/05/11)
	Contravene direction or	Convicted, $250 fine, 2 days’
	requirement (on 08/05/11)	imprisonment (in default), 12 month banning order
13 December 2011 (Brisbane Magistrates Court)	Possessing dangerous drugs (on 20/07/11)	Convicted
	Possess utensils or pipes etc that had been used (on 20/07/11)
	Breach of probation order imposed on 23/05/11	Convicted of breach, order revoked and resentenced for original offence - convicted, 2 months’ imprisonment, suspended for 12 months
20 March 2012 (Brisbane Magistrates Court)	Breach of order imposed on 13/12/11	Suspended sentence extended by 3 months
	Commit public nuisance (on 03/03/12)	Convicted, $400 fine
	Contravene direction of requirement (on 03/03/12)
11 July 2012 (Brisbane Magistrates Court)	Breach of order extended on 20/03/12	Suspended sentence partly invoked, convicted of breach, 2 weeks’ imprisonment
	Failure to appear in accordance with undertaking (on 18/06/12)	Convicted, 1 months’ imprisonment
	Breach of bail granted condition (between 06/06/12 and 13/06/12)	Convicted
	Contravene direction or requirement (on 04/06/12)
3 October 2012 (Brisbane Magistrates Court)	Failure to appear in accordance with undertaking (on 05/09/12)	Convicted, rising of the court
24 October 2012 (Brisbane Magistrates Court)	Unauthorised dealing with shop goods (maximum $150) (on 11/09/12) (2 counts)	Convicted, $200 fine
21 March 2013 (Brisbane District Court)	Serious assault person performing lawful duty (on 10/07/12)	Convicted, 6 months’ imprisonment
	Breach of bail granted condition (on 17/10/12)	Convicted
	Contravene direction or requirement (18/09/12)
	Stealing (on 26/05/12)
	Breach of suspended sentence imposed on 13/12/11, extended on 20/03/12 and partially invoked on 11/07/12	Breach(es) proven, balance of suspended sentence invoked
	Robbery in company (on 04/06/12)	Convicted, 12 months’ imprisonment (154 days’ time already served)
	Unlawful assault occasioning bodily harm whilst in company (on 17/10/12)	Convicted, 12 months’ imprisonment
21 March 2014 (Brisbane Magistrates Court)	Assault or obstruct police officer (on 12/11/13)	Convicted, 3 months’ imprisonment suspended for 12 months
	Commit public nuisance (on 12/11/13)	Convicted
	Contravene direction or requirement (on 12/11/13)
20 May 2015 (Brisbane Magistrates Court)	Possessing dangerous drugs (on 13/03/15)	Convicted, $400 fine
	Commit public nuisance (on 13/03/15)
5 August 2015 (Brisbane Magistrates Court)	Possessing dangerous drugs (on 01/07/15)	Convicted, $300 fine
26 November 2015 (Brisbane Magistrates Court)	Failure to appear in accordance with undertaking (on 19/11/15)	Convicted, 3 months’ imprisonment
10 December 2015 (Brisbane Magistrates Court)	Contravene direction or requirement (on 18/11/15)	Convicted, $100 fine
12 January 2016 (Brisbane	Stealing (on 13/10/15)	Convicted, 9 months’ probation
Magistrates Court)
9 March 2016 (Brisbane Magistrates Court)	Failure to appear in accordance with undertaking (on 13/01/16)	Convicted, 1 months’ imprisonment suspended for 18 months
	Unlawful possession of suspected stolen property (on 13/10/15) (4 counts)	Convicted, 2 months’ imprisonment suspended for 18 months
	Unauthorised dealing with shop goods (maximum $150) (on 13/10/15)	Convicted, $400 fine
	Unauthorised dealing with shop goods (maximum $150) (on 14/10/15)
22 September 2016 (Brisbane Magistrates Court)	Possessing dangerous drugs (on 15/06/16)	Convicted, 3 months’ imprisonment (69 days’ time already served)
	Possessing dangerous drugs (on 26/06/16)
	Breach of bail granted condition (on 28/06/16)
	Breach of bail granted condition (on 05/07/16)
	Breach of bail granted condition (on 12/07/16)
	Stealing (on 08/05/16)	Convicted, 9 months’ imprisonment (69 days’ time already served)
	Stealing (between 14/06/16 and 17/06/16) (2 counts)
	Breach of order imposed on 09/03/16	Suspended sentence fully invoked
	Contravene direction or requirement (on 24/06/16)	Convicted
	Fail to dispose properly of needle and syringe (on 26/06/16)
	Fail to take reasonable care and precautions in respect of syringe or needle (on 01/07/16)
	Possess utensils or pipes etc that had been used (on 15/06/16)	Convicted, 1 months’ imprisonment (69 days’ time already served)
	Possess utensils or pipes etc that had been used (on 16/06/16)
	Possess utensils or pipes etc that had been used (on 26/06/16)
	Failure to appear in accordance with undertaking (on 11/07/16)	Convicted, 1 months’ imprisonment
14 December 2016 (Brisbane Magistrates Court)	Unlawful possession of suspected stolen property (on 27/09/16)	Convicted, 3 months’ imprisonment suspended for 18 months
	Stealing (on 27/09/16)	Convicted, 6 months’ imprisonment suspended for 18 months
	Contravene direction or requirement (04/10/16)	Convicted
	Fail to dispose properly of needle and syringe (on 20/10/16)	Convicted, 1 months’ imprisonment suspended for 18 months
3 February 2017 (Brisbane Magistrates Court)	Possessing dangerous drugs (on 09/01/17)	No conviction recorded, $500 fine
	Possessing dangerous drugs (on 10/01/17)
15 May 2017 (Brisbane Magistrates Court)	Unauthorised dealing with shop goods (maximum $150) (on 27/03/17)	Convicted, $150 fine
1 September 2017 (Brisbane Magistrates Court)	Breach of order imposed on 14/12/16 (3 counts)	Suspended sentence extended by 1 month
	Commit public nuisance (on 05/07/17)	Convicted, $500 fine
9 March 2018 (Brisbane Magistrates Court)	Breach of order extended on 01/09/17 (3 counts)	Suspended sentence fully invoked
	Failure to appear in accordance with undertaking	Convicted, 6 months’ imprisonment (124 days’ time
	(on 27/10/17)	already served)
	Common assault (on 02/11/17) (2 counts)	Convicted, 12 months’ imprisonment (124 days’ time already served)
	Commit public nuisance (on 04/11/17)	Convicted, 3 months’ imprisonment (124 days’ time already served)
	Common assault (on 05/11/17)	Convicted, 9 months’ imprisonment (124 days’ time already served)
	Stealing (on 31/07/17)	Convicted, 6 months’ imprisonment (124 days’ time already served)
	Stealing (on 15/06/17)
	Stealing (on 30/08/17)
	Stealing (on 01/09/17)
	Attempted stealing (on 28/10/17)
	Urinating in a public place (on 23/10/17)	Convicted
	Contravene direction or requirement (on 23/10/17)

---

^[1] Exhibit R1, T2, 7.

^[2] Exhibit R1,T3, 234-236.

^[3] Exhibit R1,T3, 236.

^[4] Exhibit R1,T3, 199-204.

^[5] Exhibit R1,T3, 231-233.

^[6] Exhibit R1,T3, 233.

^[7] Exhibit R1,T3, 169-173.

^[8] Exhibit R1,T3, 166-168.

^[9] Exhibit R1,T3, 168.

^[10] Exhibit R1,T3, 113-117.

^[11] Exhibit R1,T3, 44-57.

^[12] Exhibit R1,T5, 276-306.

^[13] Exhibit R1,T2,7-36.

^[14] Exhibit R1,T1.

^[15] Exhibit R2, ST2, 117.

^[16] Exhibit R1, T3, 80.

^[17] Exhibit R1, T3, 78-84; Exhibit R2, ST2,115-119.

^[18] Exhibit R2, ST2, 120.

^[19] Exhibit R2, ST2, 121.

^[20] Exhibit R1, T3, 82.

^[21] Exhibit R1, T3, 73-77.

^[22] Exhibit R1, T3, 74.

^[23] Exhibit R1, T3, 75.

^[24] Exhibit R1, T3, 75.

^[25] Exhibit R1, T3, 75.

^[26] Exhibit R1, T3, 75.

^[27] Exhibit R2, ST4, 201- 211.

^[28] Exhibit R2, ST4, 204.

^[29] Exhibit R2, ST4, 209.

^[30] Exhibit R2, ST4, 209.

^[31] Exhibit R2, ST4, 209.

^[32] Exhibit R2, ST4, 210.

^[33] Exhibit R2, ST4, 210.

^[34] Exhibit R2, ST4, 210.

^[35] Exhibit R2, ST4, 221.

^[36] Exhibit R2, ST2, 122-146.

^[37] Exhibit R2, ST2 at 128.

^[38] Transcript of proceedings dated 17 March 2021, 48.

^[39] Exhibit R2, ST7, 801.

^[40] Exhibit R1, T3, 136.

^[41] Exhibit R1, T3, 136.

^[42] Exhibit R2, ST7, 778.

^[43] Exhibit R2, ST7, 776.

^[44] Exhibit R2, ST7, 773, 776-777.

^[45] Exhibit R2, ST7, 770.

^[46] Exhibit R2, ST7, 764, 766.

^[47] Exhibit R1, T5, 276-306.

^[48] Exhibit R1, T5, 305.

^[49] Exhibit R1, T10, 328.

^[50] Transcript of proceedings dated 17 March 2021, 9.

^[51] Transcript of proceedings dated 17 March 2021, 9.

^[52] In the period recorded at Exhibit R2, ST7, 514-753.

^[53] Exhibit R2, ST7, 736-738, 740, 742.

^[54] Exhibit R2, ST7, 537, 557, 767.

^[55] Transcript of proceedings dated 17 March 2021, 10.

^[56] Exhibit R2, ST7, 493.

^[57] Transcript of proceedings dated 17 March 2021, 18.

^[58] Transcript of proceedings dated 17 March 2021, 18.

^[59] Exhibit R2, ST7, 500; Transcript of proceedings dated 17 March 2021, 27.

^[60] Transcript of proceedings dated 17 March 2021, 6.

^[61] Transcript of proceedings dated 17 March 2021, 5.

^[62] Exhibit R3, ST10, 985.

^[63] Transcript of proceedings dated 17 March 2021, 19.

^[64] Transcript of proceedings dated 17 March 2021, 19.

^[65] Transcript of proceedings dated 17 March 2021, 20; ST10, 987.

^[66] Transcript of proceedings dated 17 March 2021, 20-21; ST9, 982.

^[67] Exhibit R3, ST10, 991.

^[68] Transcript of proceedings dated 17 March 2021, 21.

^[69] Exhibit R3, ST9, 956, Transcript of proceedings dated 17 March 2021, 22.

^[70] Exhibit R3, ST9, 956, Transcript of proceedings dated 17 March 2021, 22.

^[71] Exhibit R3, ST9, 954.

^[72] Transcript of proceedings dated 17 March 2021, 24.

^[73] Transcript of proceedings dated 17 March 2021, 24.

^[74] Exhibit A1, para 2; Transcript of proceedings dated 17 March 2021, 5.

^[75] Transcript of proceedings dated 17 March 2021, 27.

^[76] Transcript of proceedings dated 17 March 2021, 30.

^[77] Transcript of proceedings dated 17 March 2021, 10.

^[78] Exhibit R3, ST8, 940.

^[79] Exhibit R3, ST8, 913,915, 918, 925.

^[80] Transcript of proceedings dated 17 March 2021, 20.

^[81] Transcript of proceedings dated 17 March 2021, 9.

^[82] Transcript of proceedings dated 17 March 2021, 9.

^[83] Transcript of proceedings dated 17 March 2021, 26.

^[84] Transcript of proceedings dated 17 March 2021, 28.

^[85] Transcript of proceedings dated 17 March 2021, 6, 14-15; Exhibit R2, ST4, 206.

^[86] Exhibit A1, para 3; Transcript of proceedings dated 17 March 2021, 6.

^[87] Transcript of proceedings dated 17 March 2021, 8.

^[88] Exhibit A1, para 5; Transcript of proceedings dated 17 March 2021, 7; Exhibit A2.

^[89] Transcript of proceedings dated 17 March 2021, 12, 17.

^[90] Transcript of proceedings dated 17 March 2021, 28.

^[91] Transcript of proceedings dated 17 March 2021, 29.

^[92] Transcript of proceedings dated 17 March 2021, 15-16.

^[93] Transcript of proceedings dated 17 March 2021, 17.

^[94] Respondent’s SFIC para 5-22; Applicant’s Further SFIC para 3.

^[95] WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434, 25.

^[96] DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636, 83.

^[97] Transcript of proceedings dated 17 March 2021, 32.

^[98] Respondent’s SFIC para 21.

^[99] Applicant’s SFIC, para 21; Transcript of proceedings dated 17 March 2021, 32.

^[100] Exhibit R1, T3, 74.

^[101] Applicant’s SFIC, para 4, 6, 24.

^[102] Applicant’s SFIC, para 6, 12.

^[103] Applicant’s SFIC, para 26.

^[104] Exhibit R2, ST4, 270.

^[105] Exhibit R1, T3, 220.

^[106] Exhibit R1, T3, 186.

^[107] Exhibit R1, T3, 164.

^[108] Transcript of proceedings dated 17 March 2021, 10.

^[109] Exhibit R2, ST7, 778.

^[110] Exhibit R2, ST7, 773, 776-777.

^[111] Exhibit R2, ST7, 770.

^[112] Exhibit R2, ST7, 764, 766.

^[113] In the period recorded at Exhibit R2, ST7, 514-753.

^[114] Transcript of proceedings dated 17 March 2021, 10.

^[115] Exhibit R3, ST9, 954.

^[116] Transcript of proceedings dated 17 March 2021, 33.

^[117] Transcript of proceedings dated 17 March 2021, 33.

^[118] Applicant’s SFIC, para 27-28; Transcript of proceedings dated 17 March 2021, 33.

^[119] Applicant’s SFIC, para 29.

^[120] Exhibit R2, ST4, 251, 270, 318.

^[121] Exhibit R1, T3, 207.

^[122] Exhibit R1, T3, 223.