FEDERAL COURT OF AUSTRALIA

WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, such costs to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DAVIES J:

Introduction

1    The applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), affirming a decision of the delegate of the first respondent (Minister) to refuse the applicant’s protection visa application. The Tribunal refused the application on the ground that the applicant did not satisfy the criterion for a protection visa contained in s 36(1C) of the Migration Act 1958 (Cth) (the Act). Section 36(1C) relevantly 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.

   Note:    For paragraph (b), see section 5M.

2    Section 5M 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.

3    Section 5(1) defines a “serious Australian offence” as follows:

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

(a)     the offence:

(i)     involves violence against a person; or

(ii)     is a serious drug offence; or

(iii)     involves serious damage to property; or

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

(b)     the offence is punishable by:

(i)     imprisonment for life; or

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

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

4    The applicant has been convicted of, amongst other things:

(a)    recklessly causing injury and assaulting police, each of which is an offence attracting a five year maximum term of imprisonment; and

(b)    trafficking heroin, an offence attracting a 15 year maximum term of imprisonment –

being “particularly serious crimes” within the meaning of s 5M of the Act.

5    The sole ground of review in this proceeding is as follows:

The decision of the Tribunal was affected by jurisdictional error because there were not reasonable grounds for it to consider that the Applicant was a danger to the Australian community for the purposes of s 36(1C)(b) of the Migration Act 1958 (Cth).

Background

6    The applicant is a 39-year-old citizen of Cambodia. He had a difficult and unstable upbringing in Cambodia after being separated from his parents at a young age. He has also been diagnosed with a mild intellectual disability. When he was about 16 years old, he was brought to Australia to be reunited with his mother (who had earlier been resettled here) on a Class AH Subclass 101 Child (Migrant) visa. His visa was mandatorily cancelled under s 501(3A) of the Act in 2017 and the applicant has applied for revocation of the cancellation of that visa. A delegate of the Minister refused to revoke the cancellation of the applicant’s visa in May 2018 and the applicant has applied for the Tribunal to review that decision. That application is presently in abeyance pending the resolution of the applicant’s protection visa application.

7    The applicant applied for a Protection (Subclass 866) visa in April 2019 (protection visa). A delegate of the Minister accepted the applicant met the refugee and complementary protection criteria under ss 36(2)(a) and 36(2)(aa) of the Act. However, the delegate found the applicant to be a danger to the Australian community for the purposes of s 36(1C)(b) and accordingly refused the application.

The tribunal decision

8    It was not in contest before the Tribunal that the applicant met the refugee and complementary protection visa requirements. It was also not in contest that he has been convicted of a particularly serious crime. The only question for resolution was whether the applicant satisfied the criterion in s 36(1C)(b).

9    The Tribunal noted that about eight months after the applicant entered Australia, he started selling drugs, and from the age of 17 he has spent the majority of his life in and out of custody, with over 150 convictions spanning 19 years, more than 30 court appearances and multiple sentences of imprisonment: [17]–[18]. At [19], the Tribunal observed that the applicant’s convictions included:

(a)    numerous property offences such as burglary, theft and handling stolen goods;

(b)    numerous offences concerning the possession and trafficking of illicit drugs, in particular, heroin; and

(c)    a number of offences involving or suggestive of violence or a preparedness to commit acts of violence, such as assault, assault with a weapon and possession of a weapon.

10    The Tribunal described the applicant’s most recent offending as follows at [20]–[22]:

[The applicant’s] most recent convictions were in June 2017 and involved, amongst other things, offences of recklessly causing injury, criminal damage, unlawful assault and contravening a family violence safety notice. On these charges [the applicant] was sentenced to an aggregate term of imprisonment of 12 months.

The offending to which the June 2017 convictions relate was against a person [the applicant] characterises as his de facto partner or, in oral evidence, as his fiancée (… DFP). [The applicant] was said to have punched and choked DFP. The sentencing Magistrate characterised the relevant events in these terms: “…the assaults you subjected her to were serious. You attempted to choke her after putting her in a headlock”.

Injured in the course of assaulting DFP, [the applicant] was admitted to the Alfred Hospital whereupon he entered another patient’s room, stole the patient’s wallet and, upon his release from hospital, proceeded to purchase over $800 worth of goods using credit cards contained in the wallet.

(footnotes omitted)

11    The Tribunal further described this latest incident as follows at [24]:

… the June 2017 convictions relate to what might be characterised as a domestic disturbance of 10 August 2016 and that the domestic disturbance on that date was not a one-off event (as reflected by the fact that, in August 2016, [the applicant] was the subject of a family violence safety notice).

(footnotes omitted)

12    The Tribunal further noted that while in prison as a result of his 2017 convictions, the applicant completed what he characterised as a “Violent Intervention Program” twice, but this did not prevent him from committing further acts of violence when subsequently taken into immigration detention. In August 2018 he was involved in an apparently unprovoked attack on another detainee, and in October 2019 he was said to have kicked and punched detention facility staff in the context of a “recent” episode of psychosis: [26].

13    The Tribunal also noted that the applicant’s first custodial sentence was imposed in July 1999, comprising two months detention in a youth training centre. With the exception of the 2009, 2012 and 2016 years, custodial sentences were imposed for convictions in each year between 1999 and 2017, with the longest sentence being 18 months imposed in 2008: [25].

14    At [41]–[78] the Tribunal addressed legal arguments advanced for the applicant on the interpretation of s 36(1C)(b). In short, it was argued that:

(a)    s 36(1C)(b) should be construed narrowly and restrictively because it is an exception to the prohibition on returning refugees to countries in respect of which they have a well-founded fear of persecution; and

(b)    to come within the exception, the risk of danger:

(i)    must be present and serious, citing in support DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636 (DOB18) at 657 [83] per Logan J; and

(ii)    be, at the least, a risk of the commission of a particularly serious crime (as defined in the Act).

15    As to the argument that the risk of danger must be present and serious, the Tribunal referred to DOB18, where Logan J stated at 657 [83] that:

... 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 and Minister for Immigration and Citizenship [2009] AATA 512 (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”.

16    The Tribunal also had regard to WKCG. In that case, Deputy President Tamberlin (as he then was) rejected the contention that the danger must be present and reflect a real probability of harm. In rejecting that contention the Deputy President stated at [31]:

...it will be sufficient if there is a real or significant risk or possibility of harm to one or 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…

(emphasis in original)

17    The Tribunal noted that the WKCG and DOB18 formulations appeared to differ essentially in relation to the extent of risk required in order to constitute a danger, but did not decide which formulation to apply, holding that the risk of danger test was satisfied in relation to the applicant even adopting the more arduous DOB18 formulation of “present and serious” risk: [51], [56].

18    The Tribunal rejected the contention that there must be at least a risk of the commission of a particularly serious crime, reasoning that there is nothing in the text or context of s 36(1C) which would limit the danger concept to a risk of committing a particularly serious crime: [60]. Rather the question is whether there are reasonable grounds on which to conclude that the person is a danger to the Australian community: [77].

19    At [81]–[97] the Tribunal considered and rejected the submission that the applicant’s offending of the kind in which he had engaged previously would not, if repeated, “constitute a danger to the community for the purposes of s 36(1C)”. In particular:

(a)    the Tribunal noted the breadth of the applicant’s offending, stating at [86]:

… [the applicant’s] past offending involved numerous property offences such as burglary, theft and handling stolen goods; numerous offences concerning the possession and trafficking of illicit drugs, in particular, heroin, and a number of offences involving or suggestive of violence or a preparedness to commit acts of violence, such as assault, assault with a weapon and possession of a weapon.

(b)    the Tribunal considered that the frequency of the applicant’s past offending over a long timeframe “is strongly suggestive of a future in which [the applicant] continues to commit offences of the nature to which his past suggests he is inclined”: [87];

(c)    the Tribunal also considered that the kinds of offences which the applicant committed “are, in their nature, harmful to the Australian community”: [88]. The Tribunal elaborated upon this in relation to property offences at [89], drugs at [90] and violent offences at [91];

(d)    at [92] the Tribunal stated that especially in relation to drugs and violence, such offending did amount to “serious or significant” harm; and

(e)     the Tribunal also rejected the applicant’s submission that his offending was “insufficiently serious” having regard to the terms of imprisonment that were in fact imposed, reasoning that the imposition of any term of imprisonment reflects a view that the offence was serious: [94]–[95].

20    At [98]–[148], the Tribunal considered and found there was a “present and serious risk of [the applicant] reoffending”:

(a)    at [100] the Tribunal noted evidence from a psychiatrist of “favourable” prospects of rehabilitation, but reasoned that this was not inconsistent with presenting a present and serious risk of reoffending: [102]–[103];

(b)    the Tribunal also approached the evidence relating to the applicant’s prospects of rehabilitation cautiously, having regard to the assumptions and qualifications in that evidence: [104];

(c)    the Tribunal engaged with the medical evidence and noted that the applicant’s prospects of rehabilitation were contingent on stable housing, the availability of which was not established on the material before the Tribunal: [105]–[106]. Even if available, the Tribunal doubted that this would effectively mitigate the risk of reoffending given the applicant’s extensive and enduring offending despite previous access to accommodation support: [107]–[109]. In considering his rehabilitation prospects, the Tribunal also took into account that: the applicant’s prospects were contingent on treatment for opioid addiction, in which the applicant was usually only prepared to engage while in prison: [111]–[114]; there was no clear opinion that he would not engage in domestic violence again: [115]; and there was insufficient evidence to show his social support needs would be addressed: [116]–[123].

21    The Tribunal also did not accept the contention that the applicant was not fundamentally inclined to criminality, having regard to his history and the medical evidence: [124]–[128].

22    The Tribunal considered, but did not accept, the submission that there were plans in place to address root causes of the applicant’s criminality: [133]. The Tribunal addressed the issues of homelessness: [134]; the applicant’s heroin addiction: [135]–[138]; social dislocation: [139]; the applicant’s anti-social or drug-taking peers: [140]; and vocational training and employment: [141]–[148].

23    The Tribunal then considered whether the past was an adequate guide to the future, taking into account changes in the applicant’s circumstances, including the impact of the applicant’s recent diagnosis of a psychotic illness on the range of services and supports that would be available to him: [149]–[163]; and also whether there were mitigating factors: [167]–[169].

Consideration

24    The applicant accepted that the Tribunal, on the basis of the length of the applicant’s criminal history alone, had reasonable grounds to consider that the applicant may reoffend in some way in the future, but not that he is “a danger to the Australian community” within the meaning of that phrase in s 36(1C) of the Act. It was submitted that the word “danger” in s 36(1C) carries the meaning of a present and serious risk of exceptional criminality. The natural and ordinary meaning of the word “danger” was said to import notions of probabilistic chance and seriousness of consequences, and it would be inapt to use the word “danger” to describe a chance of trivial harm or mere inconvenience. This meaning was said to be supported contextually. It was submitted that the level of risk and seriousness of contemplated harm required to constitute “danger” was informed by the fact that s 36(1C) is an exception to the humanitarian principle of non-refoulement and is to be applied only once a visa applicant has been determined to be a refugee facing a real chance of serious harm on return to his or her country of origin. Further, it was submitted it should be inferred that Parliament intended some equivalence between the two limbs of the exception in s 36(1C), being “danger to Australia’s security” in s 36(1C)(a) and “danger to the Australian community” in s 36(1C)(b). It was submitted that to be a danger to national security suggests the capacity to affect Australia’s interests at a national or even international level and it would be incongruous if the criterion in s 36(1C)(b) was intended to deny refugee protection to “unexceptional criminals”. It was submitted that the phrase “danger to the Australian community”, properly construed in context, was intended to capture only the most serious criminality and the “demanding” threshold is a “present and serious” risk of “exceptional criminal offending”. It was argued that the applicant’s criminal history should be regarded as “unexceptional”, even taking account of the applicant’s most serious offending.

25    Contrary to the applicant’s submission, a construction that imports notions of “exceptional criminality” or “most serious criminality” into the concept of “danger” puts a gloss on the word “danger” in s 36(1C)(b). In my view, there is no warrant, textually or contextually, for importing such notions, as the qualitative assessment of criminality considered serious enough to cause a person to lose the protection against refoulement is contained in the gateway requirement for s 36(1C)(b) to apply, namely that the person has been convicted by a final judgment of a “particularly serious crime”, being a phrase which has the defined meaning in s 5M of the Act. The person having been so convicted, the inquiry is whether there are reasonable grounds to consider that the person is a “danger to the Australian community”. It was argued that what will be sufficiently prospective offending to make the person a “danger to the Australian community” should not be answered solely by reference to the statutory definition of “particularly serious crime” in s 5M of the Act which, it was said, is broad enough to encompass criminality such as minor assaults because the maximum penalty of a crime is used as the reference point. Reference was made to the commentary on Art 33(2) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (codified in s 36(1C)) in The Refugee in International Law (3rd ed, Oxford University Press, 2007) where the learned authors, Goodwin-Gill and McAdam, state at 240 in criticism of Australia’s codification of the definition of “particularly serious crime”:

… a priori determinations of seriousness by way of legislative labelling or other measures substituting executive determinations for judicial (and judicious) assessments are inconsistent with the international standard which is required to be applied, and with the humanitarian intent of the Convention. After all, what is at issue here is action by the State in manifest disregard of what is recognized as serious danger (persecution) to the life or liberty of a refugee…

(emphasis in original)

This criticism of the legislative approach that Australia has taken does not inform the proper interpretation of s 36(1C)(b) of the Act. Parliament has chosen to adjudge the seriousness of criminality triggering the criterion in s 36(1C)(b) by reference to a statutory definition of “particularly serious crime” in s 5M of the Act. What operates as a restriction on whether the protection may be lost as the result of conviction for a “particularly serious crime” is the factual inquiry as to whether there are reasonable grounds to consider the person a danger to the Australian community. Whether there are such grounds will be fact-specific in each case. In some cases, the nature of the “particularly serious crime” committed may be sufficient reason in itself for a decision-maker to consider on reasonable grounds that the person is a danger to the Australian community. In other cases, the nature of the crime may not be sufficient reason in itself. It does not follow as a matter of course that because a person has a conviction for a “particularly serious crime” (within the defined sense) there are reasonable grounds to consider that the person is a “danger to the Australian community”. If that were the test, the criterion for the exception would be the conviction itself, which is not the case, as under s 36(1C)(b) such a person does not lose the protection against refoulement unless the person is also considered on reasonable grounds to be a “danger to the Australian community”. That is, it is not enough to lose the protection against refoulement that the person be finally convicted of a “particularly serious crime”. The person’s conviction for a “particularly serious crime” founds the assessment as to whether the person is a danger to the Australian community but in all cases, the question whether a person constitutes a danger to the Australian community is one of fact and degree (DOB18 at 655 [78] per Logan J). Critically, in making that assessment, there must be a link between the conviction and the consideration that the person, so convicted, constitutes a danger to the Australian community.

26    It is unnecessary in this case to address the argument on whether the formulation of the test of danger in DOB18 by Logan J, namely there must be “present and serious risk”, carries a connotation that is different from the formulation of the test of danger given by Deputy President Tamberlin in WKCG, namely “a real or significant risk or possibility of harm”. Nor is it necessary to consider the meaning of the word “danger” in s 36(1C)(b), as whatever be the correct test, the reasons of the Tribunal demonstrate that the conclusion of the Tribunal that the applicant is a danger to the Australia community was based on reasonable grounds, even on the “present and serious risk” formulation in DOB18, if that be a more stringent test. The facts and matters to which the Tribunal had regard in reaching that conclusion amply explained and supported the conclusion reached. The Tribunal had regard, in particular, to the serious nature of the applicant’s offending – which included domestic violence, assaults (including with a weapon) and many instances of trafficking heroin – the fact of repeat offending over a significant period of years, and the applicant’s submission that he would not continue to re-offend (about which the Tribunal was not satisfied for the well-articulated and comprehensive reasons given). The applicant’s submissions did not address any deficiencies in the reasoning process, aside from arguing that the applicant’s criminal history was “unexceptional” and submitting there was no evidence before the Tribunal that the seriousness of the applicant’s offending was escalating. Rather, it was said, the proceeding before the Tribunal was conducted on the basis that any future offending would be of the same character as offending in which the applicant had engaged in the past, and so much was expressly stated by the Tribunal. However, the two parts of the test in s 36(1C)(b) are not related in any proportionate or balancing way and in the present case the Tribunal’s conclusion was amply supported by the facts and matters relating to the applicant’s criminal history and lack of prospects that he would not continue to reoffend.

27    Accordingly the application is dismissed.

Associate:

Dated:    24 July 2020