Federal Court of Australia

DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 514

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the costs of the Minister of and incidental to the proceedings, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J

1    Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). These proceedings were transferred to the Federal Court of Australia from the Federal Circuit and Family Court of Australia on 15 October 2020.

Background

2    The applicant was born in 1991 and is a citizen of Sudan. When he first arrived in Australia in 2009 he held a Global Special Humanitarian (Class XB) (Subclass 202) visa (GSH visa).

3    In August 2016, the applicant’s GSH visa was mandatorily cancelled by the Minister (cancellation decision) pursuant to s 501(3A) of the Migration Act 1958 (Cth)(Migration Act), on the basis that the applicant did not pass the character test in s 501(6)(a) of the Migration Act (when read with s507(7)(c)). It is uncontroversial that the applicant had been sentenced to a term of imprisonment of more than 12 months.

4    On 18 October 2017, the Assistant Minister for Immigration and Border Protection refused to revoke the cancellation decision under section 501CA(4) of the Migration Act.

5    The applicant subsequently applied for a permanent Protection (Class XA)(Subclass 866) visa (protection visa) under s 65 of the Migration Act. On 31 October 2018 a delegate of the Minister for Home Affairs refused the applicant a protection visa, on the basis that the applicant did not meet the requirements of s 36 (1C)(b) of the Migration Act for the grant of a protection visa. It was this decision that the applicant sought reviewed in the Tribunal.

TRIBUNAL DECISION

6    After setting out the relevant background facts, the Tribunal continued:

8. The issues before the Tribunal are:

(a)    Whether the Applicant has been convicted by a final judgment of a particularly serious crime; and if so,

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

7    The Tribunal then set out the relevant legislative framework, including s 36(2) of the Migration Act. It continued:

26.    On 10 August 2016, the Applicant pleaded guilty to, and was convicted of, ‘contravention of domestic violence order’, an offence under section 177 of the Domestic and Family Violence Protection Act 2012 (QLD) (“DFVP Act”). Section 177(2) of the DFVP Act provides:

“The respondent must not contravene the order.

Maximum penalty—

(a) if, within 5 years before the commission of an offence against this subsection, the respondent has been previously convicted of a domestic violence offence—240 penalty units or 5 years imprisonment; or

(b) otherwise—120 penalty units or 3 years imprisonment.”

27.    While the Applicant had been convicted of three offences of contravening a domestic violence order prior to his 10 August 2016 conviction, the sentencing judge appears to have sentenced the Applicant on the basis that the maximum penalty for the offence was 3 years imprisonment.

8    The Tribunal referred to Direction 75, made by the Minister under section 499 of the Migration Act, which serves to direct delegates (who consider applications for protection visas under section 47 of the Act and perform functions or exercise powers under section 65 of the Act) in granting or refusing protection visas. The Tribunal observed:

31.    In essence Direction 75 provides that in considering an application for Protection visa, a delegate must consider whether an Applicant meets the Refugee criteria in section 36(2)(a) of the Act and the Complementary Protection criteria in section 36(2)(aa) of the Act before considering the disqualifying criteria in section 36(1C) and section 36(2C) of the Act or considering refusal on character grounds under section 501 of the Act.

32.     The Tribunal notes that according to Direction 75, the direction applies to delegates. Unlike other directions, for example Direction 79 and Direction 84, Direction 75 does not apply to decisions of the Tribunal on review. In addition, directions under section 499 do not bind the Minister personally. Thus, Direction 75 does not compel the Tribunal to undertake its own consideration of whether the Applicant meets the Refugee criteria or the Complementary Protection criteria before considering whether the Applicant meets the criteria in section 36(1C) of the Act. This was conceded by the Respondent.

9    At [32] the Tribunal noted that the delegate took into account Direction 75 in considering whether the applicant met the criteria in ss 36(2)(a) and 36(2)(aa) of the Migration Act. The delegate found that the applicant met the criteria in s 36(2)(a) on the basis that there was a real chance that the applicant would suffer serious harm on the basis of his Nuba race and related imputed political opinion if he returned to Sudan. The delegate also found that the applicant met the criteria in s 36(2)(aa) as there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sudan, there was a real risk that the applicant would suffer significant harm.

10    The Tribunal observed:

34.    Neither party seeks review of these findings and the Tribunal has proceeded on the basis that the Applicant meets the criteria in section 36(2)(a) and section 36(2)(aa) of the Act.

11    The Tribunal also noted that on 25 June 2019 the Minister issued a further direction to delegates who exercise powers under s 65 of the Act to grant or refuse to grant protection visas (“Direction 84”), and to Tribunal Members who review decisions to refuse to grant Protection visas. Direction 84 requires s 65 decision-makers to take account of the “Refugee Law Guidelines” and “Complementary Protection Guideline” prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT reports), to the extent that they are relevant to the decision under consideration. The Tribunal stated that it took account of those documents to the extent that they were relevant.

12    At [39] the Tribunal noted that the Refugee Law Guidelines (Department of Home Affairs, 1 July 2017) at Chapter 14 relevantly provided under the heading “Danger to the community of Australia having been convicted of particularly serious crime”:

In considering s 36(1C)(b), each of the following elements should be considered:

• Was there a crime?

• Is the crime considered to be particularly serious?

• Has there been conviction by a final judgement?

• Does the person remain a danger to the community of Australia?

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

13    At [40] the Tribunal noted that it had considered all the evidence before it, and summarised that evidence. The Tribunal then considered whether the applicant had been convicted by a final judgment of a particularly serious crime, and itemised the applicant’s convictions. At [49] the Tribunal considered the meaning of a “particularly serious crime”. At [53] the Tribunal noted that the applicant had been convicted of contravening a domestic violence order on four occasions, and on 10 August 2016 the applicant was convicted of contravening a domestic violence order and sentenced to 15 months imprisonment with a non-parole period of five months. The Tribunal continued:

53.    The Applicant’s most recent offence clearly involved violence against a person. In sentencing the Applicant on 10 August 2016, the sentencing judge stated:

“This is the fourth such breach of a domestic violence order involving the same aggrieved. It is a violent breach. It involves you striking the aggrieved to the head on multiple occasions, to the body on multiple occasions, and it involves you dragging her in a way that must have been painful and humiliating. It is a serious example of domestic violence. It may not be of the worst category, but it is an unsavoury incident that would have caused deep distress.”

55.    It is also clear that the offence was punishable by imprisonment for a maximum term of three years, which is, of course, “a term of not less than three years”.

14    The Tribunal found at [58] that the applicant had been convicted by a final judgment of a particularly serious crime.

15    The Tribunal then observed that the only remaining issue was whether the applicant was a danger to the Australian community. The Tribunal referred to the decisions in WKCG and Minister for Immigration and Citizenship [2009] AATA 512, DOB18 v Minister for Home Affairs [2019] FCAFC 63 per Logan J at [83], and MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259, noting (inter alia) that the question whether a person constitutes a danger to the Australian community is one of fact and degree, depending on all the circumstances of each individual case including (as explained in WKCG):

26.    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.

27.    The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism…

…

29.    …once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community…

…

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 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 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.”

16    In DOB18, however, Logan J opined at [83] that in the context of 36(1C) of the Migration Act and Art 33(2) of the Refugee Convention, “danger” in s 36(1C) meant present and serious risk, and to the extent that WKCG suggested otherwise Logan J disagreed. .

17    The Tribunal found however that there was not necessarily conflict between WKCG and DOB18, because in WKCG Tamberlin DP did not find that ‘danger’ equated to a mere risk or possibility. The Tribunal continued:

64.    It is consistent to say that in order for a person to be a “danger” there must exist, at the time of the decision, a present risk which is “real” or “significant” or “serious” which is “neither remote nor fanciful” that the person will cause harm of a sufficiently serious nature (for example “of physical harm, or extreme emotional harm”) in the present or the future. If no such risk is present at the time of decision, it cannot be said that a person is a danger. Similarly, if a present risk of future harm relates to a harm which is insufficiently serious, for example a moderate risk of mere “upset” then the person will not be a danger. Conversely, if there is a low risk but one which is none-the-less “real” or “significant” or “serious” of particularly serious future harm, say grave physical injury, then that risk may be sufficient to determine that a person is a danger to the Australian community.

18    The Tribunal noted at [65] that, in determining whether an applicant met the criteria in s 36 (1C) of the Migration Act, the decision-maker was vested with a fact-finding function and not a discretion, relying on SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 at [46].

19    At [66] the Tribunal referred to BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, and noted that the task of determining whether to revoke cancellation involved the exercise of a discretion, and was fundamentally different to the fact-finding function involved in determining whether a person was a danger to the community for the purposes of s36(1C)(b) of the Migration Act. It also noted in summary that:

    in determining whether a person was a danger to the Australian community, there was no determination as to whether the danger that the person posed to the Australian community was proportionate to, or balanced against, the potential harm that the person may suffer if they were returned to the country where they feared persecution: SZOQQ at [49] (Tribunal at [67]);

    the approach in SZOQQ regarding the absence of a balancing exercise was equally applicable to the interpretation of section 36(1C)(b) of the Migration Act (at [68]);

    in considering whether a person is a danger to the community, a decision maker is not limited to considering the danger to the community of the type of offences of which the applicant had previously been convicted (at [69]);

    the decision-maker is not restricted to considering the risk of harm that a detainee presents to those in immigration detention (at [70]);

    the risk of potential future harm extends to harm which may be caused to the community if the applicant is released into the broader community (at [70]); and

    it is important to assess whether the type of harm risked means that a person constitutes a danger to the community (at [71]).

20    At [75] the Tribunal stated that it would be guided by considerations in WKCG in determining whether the applicant was a danger to the Australian community, although noted that those considerations were in no way a “checklist”.

21    In this regard the Tribunal noted that the applicant had been deal with by a court in relation to criminal offences on 17 occasions between 2011 and 2016, and the applicant had pleaded guilty to each offence for which he had been convicted (at [76]). The Tribunal also noted that the applicant’s most recent offence involved violence against a person, namely the applicant’s former partner. The Tribunal then set out in detail information concerning the convictions of the applicant. It said:

99.    The Tribunal considers that the Applicant’s contravene domestic violence order offences, viewed together are very serious. The Tribunal considers that they evidence a pattern of behaviour of increasing violence towards the Applicant’s former partner. That is also reflected in the increase in sentence imposed on the Applicant for each of the offences. On each occasion the Applicant was verbally abusing his former partner.

22    After further detailing relevant facts the Tribunal continued:

105.    The Tribunal has considered the sentences imposed upon the Applicant, especially those relating to his violent offending. Sentences imposed by courts can aid in determining the seriousness of offending. As mentioned above, the sentences for the Applicant’s domestic violence related offending have increased as has the seriousness of those offences. For the first contravention of the domestic violence order the Applicant was sentenced to 3 months imprisonment. For the second and third contraventions of the domestic violence order the Applicant was sentenced to 8 months imprisonment. Finally, for the last contravention of the domestic violence order the Applicant was sentenced to 15 months imprisonment. The Tribunal considers that the Applicant’s last sentence for imprisonment of 15 months was indicative that the offending was serious. This is especially so considering that according to the sentencing judge the maximum sentence available was three years imprisonment. The Tribunal agrees with the sentencing judge that while the offending may not have been of the worst category, it was a serious example of domestic violence.

106.    The Applicant’s violent behaviour has not been restricted to offences against his former partner. The Court briefs for the above offences, and the other public nuisance offence, also indicate that the Applicant has acted aggressively towards police. In addition, the Applicant pleaded guilty to two breaches of discipline in May and June 2016 which were committed in prison. Those offences involve the Applicant fighting with and assaulting a fellow prisoner.

107.     This Tribunal has repeatedly stated that domestic violence is a serious matter with serious consequences…

23    The Tribunal stated at [109] that the applicant’s offending was aggravated by the fact that there were repeated incidents of domestic violence resulting in repeated contravention of domestic violence orders, and continued:

110.    If the Applicant were to reoffend in manner similar to his conduct which gave rise to his offences for contravention of a domestic violence order, the Tribunal finds that this would likely result in physical and psychological harm to victims and possibly severe harm.

111.    The Tribunal finds that the most likely victims of any future harm would be the Applicant’s former partner, any future partners, and possibly members of the community more generally. The Tribunal notes that the Applicant claimed that he separated from his partner in 2014 and then went on to commit multiple incidents of domestic violence against her after they had separated. In those circumstances, the Tribunal is not confident that the fact that the Applicant is separated from his former partner will mean that he will not reoffend against her. The Applicant and his former partner share a child, which may mean that they may come into contact if the Applicant is granted a form of custody or visitation rights in the future.

24    The Tribunal noted at [112] that the applicant had been convicted of minor drug-related offences, and observed that while not particularly concerned about the repetition of crimes of that nature, it was concerned that a return to drug consumption could affect the risk of the applicant continuing to engage in violent behaviour.

25    The Tribunal concluded at [114] that the applicant’s repeated offences of contravening a domestic violence order were very serious, involved repeated and increasing levels of violence against his former partner, and that if he engaged in similar conduct it would likely result in physical and psychological harm to victims and possibly severe harm.

26    In relation to the risk of possible future harm, the Tribunal noted at [115] that there was no expert evidence before it as to the risk that the applicant would reoffend if he were allowed to remain in Australia. The Tribunal had regard to the nature of the applicant’s offending over the years, and continued:

120.    The Tribunal has also placed some low weight on three risk of reoffending assessments made by Queensland corrective services. The first assessment which was made on 4 June 2013 indicated that the Applicant scored 8/20 with a score of 20 representing the highest risk of reoffending. The second assessments which was made on 31 December 2014 indicated that the Applicant scored 12/22 with a score of 22 representing the highest risk of reoffending. The third and final assessment was made on 16 August 2016 and indicated that the Applicant scored 17/22 with a score of 22 representing the highest risk of reoffending. There was no expert witness before the Tribunal to fully explain the scores and the Tribunal will therefore only place low weight on these assessments. However two things should be noted. First, a score of 17/20 would appear to represent a not insignificant risk of reoffending. Secondly, there has been a significant increase in the risk of reoffending number from 8/20 in 2013 to 17/22 in 2016. It is noted that there is no recent risk of reoffending assessment and it has now been some time since the Applicant offended and there are a number of matters discussed below which may indicate that the Applicant’s risk of reoffending has decreased.

121.     The Tribunal has taken into account that the Applicant has offended while living with and being supported by his mother. He has offended while being an active member of his local church. He has offended on numerous occasions, including contravening a domestic violence order on four occasions, since the birth of his son.

122.     All the above matters give weight to the proposition that there is a real, present and serious risk that the Applicant will continue to reoffend in a violent manner if he is allowed to remain in Australia.

27    The Tribunal then went on to consider matters which, if accepted, may decrease the applicant’s risk of reoffending such that he was no longer a danger to the Australian community. The Tribunal at [123]-[125] noted the expressions of remorse by the applicant, and at [126] took into account in the applicant’s favour that he was relatively youthful when he began offending and for much of his offending, and also that he pleaded guilty to all his offences. The Tribunal noted that the applicant nonetheless continued offending. The Tribunal noted at [127] that the applicant had a six year old son with whom he wished to re-establish a relationship, as well as difficulties the applicant might have reintegrating into the Sudanese community. At [135]-[136] the Tribunal took into account that the applicant had completed a number of rehabilitative courses while in immigration detention, and at [137] that he had been gainfully employed for some of his time in Australia. However, the Tribunal found:

139.    After careful consideration of this issue, including consideration of all the matters mentioned above, the Tribunal has found that there is a real, significant and serious risk which is neither remote nor fanciful that the Applicant will cause harm to members of the Australian community if he remains in Australia.

140.     The Tribunal considers that notwithstanding that the Applicant has not been found guilty of any offences for some time and the efforts that he has made to rehabilitate himself, and despite all of the strong incentives that exist for the Applicant not to reoffend, the Tribunal considers that the Applicant’s long and frequent history of offences, including his very serious violent offences committed against his former partner, on balance suggest that the Applicant will cause harm to members of the Australian community if he remains in Australia.

28    Finally, the Tribunal concluded:

141.    The Tribunal has found that the Applicant has been convicted by a final judgment of a particularly serious crime. The offence of contravention of a domestic violence order for which the Applicant was sentenced to 15 months imprisonment on 10 August 2016 was an offence against a law in force in Australia where the offence involved violence against a person. In addition, the offence was punishable by imprisonment for a maximum term of not less than three years.

142.     The Tribunal has found that the Applicant’s violent offences are very serious and involved repeated and increasingly serious, abusive and violent conduct towards his former partner. The Tribunal has found that if the Applicant engages in conduct similar to the conduct which gave rise to his offences for contravention of a domestic violence order, this would likely result in physical and psychological harm to victims and possibly severe harm. The Tribunal has found that there is a real, significant and serious risk that the Applicant will reoffend if he remained in Australia.

143.    The Tribunal finds that, at the time of this decision, there exists a present risk which is real, significant and serious, which is neither remote nor fanciful that the Applicant will cause physical harm and perhaps severe physical harm, or extreme emotional harm in the present or the future if he were allowed to remain in Australia. Therefore, the Tribunal finds that the Applicant is a danger to the Australian community

144.     Consequently, the Tribunal is not satisfied that the Applicant meets the criterion for the grant of a Protection visa in section 36(1C)(b) of the Act.

145.     The Tribunal finds that the Minister’s delegate’s decision, to refuse the Applicant a Protection visa on the basis that the Applicant does not meet the criterion for the grant of the visa in section 36(1C)(b) of the Act, is the correct decision.

29    Accordingly the Tribunal affirmed the delegate’s decision.

Grounds of application

30    At the hearing of the application for judicial review both the applicant and the Minister were represented. The applicant did not press the first ground of review. Ground 2 was slightly amended at the hearing. Grounds 2 and 3 as pressed were as follows:

The Administrative Appeals Tribunal (‘the Tribunal’) fell into jurisdictional error by:

…

2. Constructively failed to exercise its jurisdiction by asking itself the wrong question and/or;

3. Misconstruing its statutory task when making the reviewable decision.

Particulars

(a)    The Applicant is a citizen of the Republic of Sudan;

(b)     The Applicant travelled to Australia under a Global Special Humanitarian visa;

(c)     The Applicant's visa was mandatorily cancelled by operation of section 501(3) of the Migration Act, 1958 ('the Act');

(d)     The Assistant Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs personally refused to exercise his discretion to revoke the mandatory cancellation of the Applicant's visa;

(e)     The Applicant lodged an application for a protection visa;

(f)     The delegate for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, operating under Ministerial Direction Number 75 was satisfied the Applicant met the criteria under sections 36(2)(a) and 36(2)(aa) of the Act, but was not satisfied the Applicant met the criteria under section 36(1 C)(b) of the Act;

(g)     The Tribunal operating under Ministerial Direction Number 84 failed to consider the legal consequences of its decision, in that the Applicant may be:

(i)     Refouled to Sudan, notwithstanding the Applicant may be a person whom Australia may owe protection obligations too;

(ii)     The Applicant has already served his criminal sentence and has spent an additional period in Immigration detention for an indefinite time;

(iii)     Australia may be in breach of the non-refoulment obligations under Article 33 of the Convention Relating to the Status of Refugees, to which it is a signatory.

31    In summary the applicant submitted:

    The Tribunal misunderstood and misapplied the meaning of the word “danger” in s 36(1C)(b) of the Migration Act.

    The Tribunal’s conclusion that the applicant represented a danger to the Australian community was not, on the evidence before the Tribunal, open to it and was thereby illogical or irrational.

    The Tribunal failed to give proper consideration to evidence before it, which was relevant to the question of whether the applicant was a danger to the community.

    On the basis of the evidence before both the Minister’s delegate and the Tribunal, the applicant was not given a fair go. Ultimately the applicant is not a danger to the Australian community.

    Grounds 2 and 3 are overlapping, and could be dealt with together involving two main considerations of reasonableness.

    Reasonableness was at large in this matter because there was a failure on the part of the Tribunal to establish a jurisdictional fact by failing to give proper, genuine, logical, rational and realistic consideration to evidence.

    At [115] the Tribunal stated that there was no expert evidence, however went on to consider three reports from Queensland Corrective Services about reoffending, and impermissibly speculated as to their meaning.

    There was tension or disagreement between the decisions of Logan J in DOB18 and the Tribunal in WKCG.

    The satisfaction required to found a valid exercise of power to refuse a protection visa on the basis of considerations in s 36(1C)(b) of the Migration Act was a state of mind which must be formed reasonably and on a correct understanding of the law: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; [1999] 197 CLR 611.

    Although the Tribunal concluded that the applicant would cause harm to members of the Australian community if he remained in Australia, and there existed a present risk which was of real significance and serious, the decision represented a convolution of the two contradictory tests, and accordingly was tainted.

    A mere possibility of danger was too low a threshold for satisfaction of s 36(1C)(b).

    The decision of the Full Court in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 was relevant notwithstanding that it dealt with the character test and the non-revocation power and the removal power, in particular at [65] and [69].

    In summary the Tribunal ultimately erroneously asked itself the following question which led to jurisdictional error, namely: is the applicant a danger to the Australian community where danger means a real or significant risk or possibility of harm? The Tribunal should have instead asked the correct question in terms of Logan J’s decision in DOB18 namely whether the applicant was a danger to the Australian community where danger means a present and serious risk.

    The Tribunal failed to give proper and genuine consideration to the evidence before it or which was relevant to the question of whether the applicant was a danger to the community. Further, no expert evidence of reoffending was considered.

32    The respondent submitted, in summary:

    The primary issue was whether, in relation to the meaning of danger in s 36(1C) of the Act, there was a difference between the approaches of Logan J in DOB18 and the approach of Tamberlin DP in WKCG and, if so, whether the Tribunal failed to apply Logan J’s approach and fell into a material error as a result. The position of the respondent was that the approaches in the two cases were reconcilable.

    In WKCG the Tribunal focused on what was needed to quantitatively exist in order for there to be a danger, whereas Logan J in DOB18 was focused on what needed to be established qualitatively in order for there to be a danger.

    The Tribunal went through the type of harm that potentially would be suffered and found there was a real significant and serious risk the applicant would re-offend.

    The Tribunal applied a test that met the standard articulated by Logan J in DOB18.

    The illogicality complaint of the applicant went to the merits of the case. There was extensive evidence supporting a finding that the there was a real or substantial risk of the applicant reoffending, see, for example, at [116]-[117] and [120]-[122] of the Tribunal’s decision.

    The present case is materially different from Splendido.

Consideration

33    That the applicant has been convicted of a serious crime for the purposes of s 36(1C)(b) of the Migration Act is not in dispute. As I have already observed, the key issue raised by this application is whether the Tribunal asked itself the wrong question in respect of whether the applicant presented a danger to the community for the purposes of s36(1C)(b) of the Migration Act. Counsel for both parties made detailed submissions, both orally and in writing, concerning this point.

34    The applicant submitted that there is conflict in legal principle between the statements of Tamberlin DP in WKCG and Logan J in DOB18. The applicant also submitted that the Tribunal at [63] of its reasons misconceived a false equivalence and false coherence between these authorities where it stated:

63.    It has been suggested in decisions of this Tribunal that the decisions of Deputy President Tamberlin and Logan J in WKCG and DOB18 respectively may provide a different or inconsistent meaning of the term “danger”. With the greatest respect, the Tribunal does not consider that there is any necessary inconsistency between the comments by Deputy President Tamberlin and Logan J. Logan J expressed that he would disagree with the view that Deputy President Tamberlin was suggesting that “danger” in Article 33(2) of the Refugees Convention (and by extension in section 36(1C)(b) of the Act) equated to mere “risk” or “possibility”. Logan J did not find that Deputy President Tamberlin had done so. The Tribunal considers that is clear that Deputy President Tamberlin did not equate “danger” to mere “risk”. Rather, Deputy President Tamberlin said that it will be sufficient for “danger” to be established if there is a “real or significant” risk or possibility of harm to one or more members of the Australian community. The Tribunal considers that it is clear that the words “real or significant” qualify both the word “risk” and the word “possibility”. Thus, in order for a person to be a danger to the community the risk or possibility of harm presented by that person must be real or significant. Deputy President Tamberlin found that it was not necessary to establish that it was probable that a person would cause harm for them to be a danger. The Tribunal considers that this is entirely consistent with Logan J’s observations that “danger” means “present and serious risk”.

35    The applicant submitted that, to the extent that the Tribunal defined “danger to the community” by reference to the test articulated in WKCG rather than by Logan J in DOB18, the Tribunal erred as a matter of law.

36    Recently in EBD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 334, after having regard to WKCG and other authorities, Kerr J said:

28.    The expression “danger to the Australian community” is to be construed in its context, but has no technical meaning. The phrase is used in both s 36 and s 501(6)(d) of the Act, albeit in slightly different contexts. The language is that of ordinary English. Whether it is satisfied involves a close consideration of the whole of the relevant facts and circumstances as they present today. I am not sure that there is any one test as such. The view that a person is a danger to the Australian community can be held in a variety of circumstances. Prior criminal conduct is obviously relevant. The degree of risk of recidivism is obviously relevant, and that requires attention to his motivation not to re- offend. What rehabilitation a person has undergone is obviously relevant. When his last offending occurred is relevant. The views of those who know him well can be relevant.

37    In my view there is considerable force to the observations of Kerr J in respect of the concept of “danger to the Australian community” for the purposes of s 36 (1C)(b) of the Migration Act. As his Honour said, the language is that of ordinary English, has no technical meaning, and ought to be construed in its context.

38    Notwithstanding the detailed submissions of both Counsel in the present application, I respectfully note that relevant observations in WKCG and DOB18 were both dicta, could not be said to conclusively define the meaning of “danger to the Australian community” for the purposes of s 36 (1C)(b), and in my view do no more than provide guidance in respect of the ordinary meaning of the words in that section.

39    Turning now to s 36 (1C)(b), I note that “danger” is a term in common use. The Oxford English Dictionary defines it relevantly as:

Liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril

40    The Macquarie Dictionary similarly defines “danger” as:

noun 1. liability or exposure to harm or injury; risk; peril.

2. an instance or cause of peril.

41    Section 36 (1C)(b) of the Migration Act refers to danger “to the Australian community”. The section does not require there to be any specific level of danger to the Australian community from the visa applicant. The fact that s36(1C)(b) is referable to the visa applicant having been convicted by a final judgment of a particularly serious crime suggests however that, in order for s 36 (1C)(b) to be enlivened:

    there must be a real risk of exposure to harm in the Australian community from the visa applicant;

    the harm the Australian community would be exposed to by the visa applicant would be proportionate or referable to the “particularly serious crime” for which the visa applicant had been convicted; and

    the Minister must have reasonable grounds for forming that view.

42    As Tamberlin DP observed in WKCG at [25], the question whether a person constitutes a danger to the Australian community is one of fact and degree. This proposition is not in dispute. However at [31] it was further observed that 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 members of the Australian community.

43    Justice Logan in DOB18 at [83] opined that, read in context, “’danger’ in s 36 (1C)(b) means a risk that is present and serious”. His Honour continued:

83.    …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 that just “risk”

44    In the present case after referring to both WKCG and DOB18, the Tribunal at [64] found that in order for a person to be a “danger” there must exist, at the time of the decision of the Minister, a present risk which is “real” or “significant” or “serious”, and which is neither remote nor fanciful, that the person will cause harm of a sufficiently serious nature in the present or future.

45    The Tribunal in the present case plainly gave detailed regard to the factual circumstances of the applicant. It clearly recognised key aspects of the concept of “danger to the Australian community”, and the inherent requirement of real risk of serious harm to the Australian community by the visa applicant being extant at the time of the relevant decision. I note for example at [111] the Tribunal noted that most likely victims of any future harm would be the applicant’s former partner, any future partner, and possibly members of the community more generally; and at [112]-[113] the Tribunal noted the other offending of the applicant including his minor drug-related offences but was not particularly concerned about them except to the extent that a return to drug consumption or aggression on the part of the applicant could affect the risk of the applicant engaging in violent behaviour

46    I agree with the Tribunal’s articulation of principle at [64] in respect of whether the applicant was a “danger to the Australian community”. I do not consider it to be inconsistent with comments of Logan J in DOB18, rather I consider the Tribunal’s statement to be an accurate statement of the law. I do not consider that there is any material conflict between the legal principles as explained in WKCG and Logan J in DOB18. I am not satisfied that the Tribunal asked itself the wrong question in considering whether the applicant was a danger to the Australian community, as the applicant claims in ground 2.

47    The applicant further argued that the decision of the Full Court in Splendido supported a finding that, in the present case, the Tribunal had simply engaged in guesswork or speculation about the applicant’s likely conduct should he remain in Australia, and the danger he would supposedly pose to the Australian community. In Splendido the Full Court observed that, where consideration by the Minister and exercise of the power to cancel a visa depended on an assessment and findings of fact for its exercise, this required that there be probative material on which those findings can be made, and findings cannot properly be based on speculation or guesswork or on assumptions based on material incapable of supporting those assumptions (Splendido at [107] and [111] per Mortimer J, [113] per Moshinsky J and [131]-[132] per Wheelahan J).

48    In the present case however, as Counsel for the Minister accurately submitted, the Tribunal had extensive material before it concerning the circumstances of the applicant’s offending, including the nature of the applicant’s offending, his victims, relevant sentencing remarks and the support structures the applicant had in place at the time of offending. I do not accept that the Tribunal made its findings based on speculation, or guesswork, or on assumptions based on material incapable of supporting those assumptions.

49    In my view there was no error on the part of the Tribunal in its construction of “danger to the Australian community” referable to s 36(1C)(b) of the Migration Act. Ground 2 is not substantiated.

50    Turning to whether the Tribunal misconstrued its statutory task when making its decision, to the extent that this ground is based on alleged misunderstanding by the Tribunal of applicable legal principles in determining whether the applicant was a danger to the Australian community, I consider this argument has no merit for reasons I have already explained in relation to ground 2.

51    I note also the applicant’s submission that the decision of the Tribunal was affected by jurisdictional error referable to the evidence before it, and that the conclusion of the Tribunal that the applicant constituted a danger to the Australian community was illogical or irrational in light of the observation of the Tribunal at [130]. In my view these submissions have no merit. Not only does the applicant appear to seek impermissible merits review of the Tribunal’s findings, it is clear from the Tribunal’s lengthy and detailed consideration of the evidence before it that the evidence before it was properly considered by the Tribunal.

52    I note that there was evidence before the Tribunal of three reports of Queensland Corrective Services assessing the likelihood of the applicant reoffending. The Tribunal took that evidence into account, however ascribing it minimal weight on the basis that there was no expert witness called who could properly explain relevant scores measuring risk. I understand that this evidence was adduced by the respondent. To the extent that the applicant cavils with the decision of the Tribunal concerning the absence of expert evidence before it concerning the danger he posed to the Australian community, it appears that no such expert evidence was adduced by the applicant. It is trite to note that it was for the applicant to make his case to the Tribunal, advancing whatever evidence or argument he wished to advance in support of his contention that he had a well-founded fear of persecution for a Convention reason: Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187], DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229 at [80]. It was not for the respondent to seek to adduce evidence in mitigation on the applicant’s behalf, or for the Tribunal to inquire as to this issue: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 78 ALJR 992 at [43].

53    I am not satisfied that the Tribunal in any way misconstrued the task before it. Ground 3 is not substantiated.

Conclusion

54    In my view the application should be dismissed. Costs should follow the event.

Associate:

Dated: 6 May 2022