Federal Court of Australia

FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

ROFE J:

Introduction

1    The applicant is a 38 year old citizen of Cambodia. He arrived in Australia as a dependent on his older sister’s partner visa in 1998. The Applicant’s criminal history began shortly after his arrival in Australia, with his last recorded offence occurring in 2015. Since completing his last term of imprisonment, the applicant has been in immigration detention.

2    The applicant’s visa was mandatorily cancelled in 2017 under the Migration Act 1958 (Cth) (Migration Act). During the time in which that decision was being reviewed, the applicant applied for a protection visa. It has been accepted that the applicant is a person in respect of whom Australia owes protection obligations under s 36(2)(a) of the Migration Act. However, a delegate of the Minister ultimately refused to grant a protection visa, on the basis that the applicant does not meet the criteria under s 36(1C) of the Migration Act because he presents a danger to the Australian community. The Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision.

3    The applicant seeks judicial review of the Tribunal’s decision. For the reasons that follow, the application is dismissed.

Legislation

4    An applicant for a protection visa under the Migration Act must meet the criteria in s 36. Section 36 provides:

(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.

(2)     A criterion for a protection visa is that the applicant for the visa is:

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

Background

5    The following summary of background facts are taken primarily from the Tribunal’s reasons for decision (Reasons).

6    The applicant was born in 1984 in Cambodia, and is a Cambodian citizen. The applicant has two sisters, born in 1977 and in 1991. Both of the applicant’s parents died by the time the applicant was 12 years old. From then, the applicant and his sisters lived with other relatives in Cambodia.

7    In 1997, the applicant’s older sister (SP) applied for a spouse visa. The applicant and his younger sister (LP) were listed as dependents on the application. The spouse visa was granted in October 1998 and the applicant arrived in Australia shortly thereafter. In October 1999 the applicant was granted a Class BC Subclass 100 Spouse Visa.

8    On 3 February 2017, the applicant’s visa was mandatorily cancelled on the basis that he had a substantial criminal record. On 15 August 2018, a delegate of the Minister decided not to revoke the mandatory cancellation. On 8 November 2018, the (differently constituted) Tribunal affirmed the delegate’s decision.

9    On 29 March 2018, the applicant applied for a protection visa. On 4 June 2018, a delegate of the Minister refused to grant the visa. On 22 August 2018, the (differently constituted) Tribunal remitted the matter for reconsideration, after finding that the applicant satisfied the criteria under s 36(2)(a) of the Migration Act.

10    On 15 October 2020, a delegate refused to grant the applicant a protection visa. The delegate was satisfied that the applicant was a person to whom Australia has protection obligations under s 36(2)(a) of the Migration Act, however, the delegate was not satisfied that the applicant met the criterion in section 36(1C). On review, the Tribunal affirmed the delegate’s decision.

11    I also note that prior to this decision, the Department twice took steps to cancel the applicant’s visa.

12    In October 2005, the Department commenced steps to cancel the applicant’s visa on character grounds under s 501 of the Migration Act. However, in February 2006, the applicant was informed his visa would not be cancelled. At that time, the applicant was also informed that a visa cancellation may be reconsidered if fresh information came to light.

13    In June 2009, the Department again took steps to cancel the applicant’s visa on character grounds. In February 2010, the applicant was again informed that his visa was not cancelled. The applicant signed a document which stated he could again be considered for cancellation or refusal of another visa, and that his past conduct can be considered.

14    The applicant’s offending began when he was 17 years old. I adopt the Tribunal’s summary of the applicant’s offending set out at [18]–[37] of the Reasons. Given the issues in this application relate to the danger posed by the applicant to the Australian community, it is useful to summarise the applicant’s criminal history below:

(a)    July 2000, Children’s Court: recklessly cause injury and assault with weapon. Charges adjourned without conviction and applicant released on a good behaviour bond.

(b)    October 2001, Children’s Court: handle/receive/retention of stolen goods. Charges adjourned without conviction and applicant released on a good behaviour bond.

(c)    October 2002, Magistrates’ Court: possess heroin (3 counts), fail to answer bail, traffic heroin (3 counts), possess money being proceeds of crime (3 counts), and possess property being proceeds of crime. Sentenced to 18-month Community Based Order (CBO) involving treatment, participation in counselling, and community work.

(d)    November 2002, County Court of Victoria: armed robbery (3 counts) and aggravated burglary. Sentenced to two years in a Youth Training Centre.

(e)    February 2003, Magistrates’ Court: traffic heroin. Sentenced to twelve months in a Youth Training Centre.

(f)    March 2003, County Court: breaching CBO from October 2002, sentenced to four months in a Youth Training Centre for each count.

(g)    July 2005, Magistrates’ Court: burglary (2 counts), theft (2 counts), possess an article prejudicial to security/good order, theft of a motor vehicle, cultivate narcotic plant – cannabis, obtain property by deception, go equipped to steal/cheat. Sentenced to aggregate term of 18 months in prison.

(h)    January 2007, Magistrates’ Court: possess controlled weapon without excuse, attempted theft from motor vehicle, go equipped to steal/cheat, theft of a motor vehicle, theft from a motor vehicle, theft (2 counts), criminal damage. Sentenced to an aggregate term of 4 months in prison, to be served by way of a Drug Treatment Order. Later, in August 2007, sentenced to 15 days in prison to be served by way of a Drug Treatment Order in relation to these convictions.

(i)    July 2007, Magistrates’ Court: theft from shop (shopsteal) and deal in property suspected the proceeds of crime. Sentences to two months’ imprisonment, suspended for nine months.

(j)    November 2007, Magistrates’ Court: theft of a motor vehicle, theft, go equipped to steal/cheat. Sentenced to aggregate term of 42 days imprisonment, suspended for six months.

(k)    September 2008, Magistrates’ Court: theft of a motor vehicle, traffic heroin, use heroin, theft (2 counts), interfere with motor vehicle, tamper with motor vehicle, deal in property suspected the proceeds of crime (10 counts), obtain property by deception (7 counts), fail to answer bail, handle/receive/retention of stolen goods, go equipped to steal/cheat, possess dangerous article in public place, possess controlled weapon without excuse (2 counts). Additionally convicted of breach of court orders from July 2007 and had two months’ imprisonment sentence restored; and sentenced to an aggregate term of 10 months’ imprisonment.

(l)    June 2009, Magistrates’ Court: theft of a motor vehicle (2 counts), theft from motor vehicle, drive under the influence of drugs, drive in a manner dangerous, unlicensed driving, fail to give name and address to injured, fail to render assistance after an accident, fail to report to police, refusal to accompany police to assess driver impairment, theft from shop (shopsteal). Sentenced to one year and six months imprisonment.

(m)    August 2011, Magistrates’ Court: burglary, theft, attempted theft and go equipped to steal/cheat. Sentenced to three months imprisonment.

(n)    June 2013, Magistrates’ Court: possess heroin (2 counts), possess drug of dependence – prescription drug (2 counts), possess drug of dependence – not named, possess methylamphetamine, deal in property suspected the proceeds of crime, fail to answer bail (4 counts), theft of motor vehicle, unlicensed driving, theft, use amphetamine, use heroin, possess controlled weapon without excuse (2 counts). Convicted and placed on Community Corrections Order (CCO) for 12 months.

(o)    August 2014, Magistrates’ Court: contravention of CCO from June 2013, obtain property by deception (7 counts), dishonestly receive stolen goods, carry controlled weapon without excuse, possess suspected stolen goods. Sentenced to four months imprisonment.

(p)    February 2015, Magistrates’ Court: recklessly cause serious injury, failure to stop vehicle after an accident, fail to render assistance after an accident. Sentenced to 12 months imprisonment and disqualified from driving for eight years. These orders were appealed to the County Court, which increased the total aggregate sentence to two years and six months.

The Tribunal’s decision

15    The Reasons begin with a short summary of the legislative scheme, the applicant’s background, and the applicant’s criminal history.

16    The Tribunal then summarised the parties’ respective submissions at [38]–[44].

17    The Tribunal went on to summarise the oral evidence given at the hearing.

18    At [45]–[72], the Tribunal summarised the applicant’s oral evidence. Several aspects are worth noting.

19    The applicant gave further evidence regarding his 2015 conviction for recklessly causing serious injury. In that incident, the applicant hit his partner with a vehicle. The Tribunal quoted the applicant’s evidence at [48]:

I was in a relationship with the other person for nine months, but it was not a good relationship, her name was ‘P’. We were arguing. I was driving home. A couple of streets away I pulled over. There was a tree trunk in front of the car. We were swearing and arguing back and forth. I told her to get out. She got out. She turned around and said something. I said ‘F--- you, I’m going’. I meant to put the car into reverse. Accidentally put it in drive. Hit her and ran her over. She fell on the ground. I asked if she was ok. She kept swearing. I said, ‘I’ve had enough, I’m going’. I didn’t know she was injured until two weeks later when police came and showed me pictures of her broken ankle.

20    The applicant also stated he was drug-affected at the time, having taken sleeping pills given to him by some friends (at [50] and [65]). The applicant did not have a driver’s licence at the time of the incident (at [65]).

21    The applicant also gave evidence that he had stopped taking heroin and had commenced a methadone program in the community during the year between the incident and the commencement of his prison term (at [52]). He remained off heroin and other drugs in prison and in immigration detention (at [54]).

22    The applicant gave evidence about various rehabilitation programs he has taken while in prison for the 2015 incident, including drug and alcohol programs, relapse prevention courses, and courses about “talking change” (at [57]–[58]). The applicant was also taken to evidence of having attended various treatment programs in 2009, but could not remember all the details (at [68]–[69]).

23    The applicant also gave evidence about his intentions and plans for the future if released into the community. He gave evidence that he would go and live with his older sister and her family, or with his younger sister and her partner (at [60] and [64]). He said he intended to visit a local doctor he had previously seen who knew of his drug history (at [72]), and that he had a local youth worker and support group to see for help and counselling (at [59]).

24    The applicant also stated he hoped to get a job at the takeaway food shop owned by his older sister (at [59] and [64]). When asked further about his work plans, the applicant said he could help at the takeaway shop by doing preparation, cleaning and coking, and that he has previous experience cooking. He had not discussed salary (at [70]).

25    The applicant recalled the Departments decisions not to cancel his visa in 2006 and 2010, and remembered a warning letter dated February 2016. The Tribunal asked why it should believe he would not re-offend now, the applicant responded (at [71]):

Back then I was young and wasn’t taking things seriously. I thought it’s just a letter. I was careless. I was too much into using back then. I didn’t realise it was serious until I came to the detention centre.

26    The Tribunal then summarised the evidence of Mr Simmons, a psychologist, at [73]–[75]. Mr Simmons had also prepared a report about the applicant dated 25 February 2021.

27    Mr Simmons diagnosed the applicant with heroin use disorder. While the applicant still has heroin use disorder “in a technical sense”, it is currently in abeyance (at [75]). Mr Simmons noted that many sufferers relapse after a long period of abstinence (at [74]) and that the applicant will struggle a little on release, recommending that he continues on a small dose of methadone (at [75]).

28    In relation to the applicant’s propensity to relapse, the Tribunal summarised Mr Simmons’ evidence at [76]:

Mr Simmons says maturation plays a big part in the ability of a person not to return to drug use. Mr Simmons said it is a positive sign that [the applicant] has not taken drugs in prison and if he had family support, work and counselling in the community, it would lower the risk of reoffending, but if he became homeless and re-engaged with his old peer group, then there would be a higher risk.

29    The Tribunal then summarised the evidence of HT, the applicant’s brother in law, at [79]–[82]. HT said he did not have concerns about the applicant living in his family home, but that if the applicant were to resume using heroin he would “kick him out” and seek help for him (at [80]). HT also said he had arranged a job for the applicant in a factory which lasted a few months, and he was unsure of why the applicant left the job (at [82]).

30    The Tribunal summarised the evidence of SP, the applicant’s older sister, at [83]–[89].

31    SP gave further information about potential work for the applicant. She said he could do kitchen tasks and wait tables at her takeaway shop, and that she would teach him how to cook. She said she usually leaves home at 4:00am, and that the applicant would have to go with her, but that she had not discussed hours with the applicant (at [85] and [87]). She said she would pay him enough to live on, but that she did not want him to have a lot of money on him (at [87]).

32    The tribunal summarised the evidence of LP, the applicant’s younger sister, at [90]–[92]. Like SP, LP said the applicant could live with her and her boyfriend.

33    The Tribunal summarised the applicant’s closing submissions at [93]–[98], and the respondent’s closing submissions at [99]–[107].

34    The Tribunal began its consideration section at [108].

35    At [108]–[111], the Tribunal considered whether it should consider the potential consequences if the applicant is repatriated. The Tribunal accepted that the task posed by the relevant parts of the Migration Act does not require a balancing act (at [108]), and rejected counsel for the applicant’s submission that the test in Briginshaw v Briginshaw (1938) 60 CLR 336 is applicable (at [111]).

36    The Tribunal then considered the “framework of the exception in section 36(1C)” from [112]. The Tribunal began by extracting relevant passages from Re WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG), a decision of the Tribunal to which I shall return later in these reasons. The Tribunal noted there is no requirement that violence be present to fulfil the definition of a “serious Australian offence” in ss 5 and 5M of the Migration Act (and therefore, a “particularly serious crime” in s 36(1C)(b)) (at [114]–[117]).

37    The Tribunal then summarised the statutory task required by s 36(1C)(b) of the Act. It characterised the task as a “two-step process”, concluding at [120]:

Section 36(1C)(b) of the Act therefore requires a decision-maker to undertake a two-step exercise. The first step is: Has the person been convicted by final judgment of a ‘particularly serious crime’? If the decision-maker is satisfied that the answer to that question is ‘yes’, the second step is: to consider whether on reasonable grounds the person ‘is a danger to the Australian community’.

38    At [121]–[125], the Tribunal considered the first step of the process identified above, namely whether the applicant had been convicted of a particularly serious crime.

39    The Tribunal noted at [122] that the delegate had considered that three of the applicant’s offences fulfilled the criterion of a “particularly serious crime”, namely the 2000 charges for recklessly causing injury and assault with a weapon; his November 2002 conviction for two counts of armed robbery and one count of aggravated burglary, and his November 2015 conviction for recklessly causing injury.

40    The Tribunal was satisfied that the applicant had indeed been convicted of a particularly serious crime, but noted at [125] that it excluded the 2000 offending from that finding as no conviction was recorded.

41    The Tribunal then turned to the question of whether the applicant is a danger to the Australian community at [126].

42    At [127], the Tribunal acknowledged Bromberg J’s formulation of the “test” in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1 (KDSP) for determining whether someone is a danger to the Australian community, noting at [128] that it is a sensible way to approach the assessment. I will return to this test later in these reasons.

43    The Tribunal accepted at [129] that some of the applicant’s offending was at the “lower end of the spectrum”, and that some of it had been driven by drug taking. The Tribunal noted that at the higher end the applicant’s offending included armed robbery, aggravated burglary, and recklessly causing injury.

44    At [130], the Tribunal also noted the wide range of sentencing and behavioural management tools that courts have applied to the applicant, but that despite the measures the applicant has returned to reoffending.

45    At [131]–[133], the Tribunal summarised the circumstances of applicant’s offences that it had already determined constituted “particularly serious crimes”; namely the 2002 armed robbery convictions and the 2015 recklessly causing injury conviction. The Tribunal noted at [134] that those offences meant it did not accept counsel’s submission that none of the applicant’s offending was violent.

46    At [134]–[135], the Tribunal outlined various mitigating circumstances, including the early death of both his parents and emigration to Australia, which treating psychologists noted caused significant displacement to the applicant. Further, the Tribunal noted that the applicant began smoking cannabis at the age of 18, and then heroin at age 21, which has been “a particular blight on [the applicant’s] life”.

47    The Tribunal at [137] outlined the period of the applicant’s offending, noting it began two years after his arrival in Australia and continued with “relatively regular monotony” for a decade, apart from periods where the applicant was in Youth Training Centres or other custodial settings.

48    Considering the risk of recidivism from [138], the Tribunal noted that material from two psychologists was in evidence: evidence given by Ms Elizabeth Warren, who told the Tribunal (differently constituted) in 2018 that she considered the applicant’s risk of relapse to be on the cusp of low to medium, and evidence from Mr Simmons. I set out the Tribunal’s summary and conclusions at [139]–[141] regarding Mr Simmons’ evidence below:

Mr Simmons in his most recent report wrote that [the applicant]:

… is aware that should he relapse, then the probability of returning to offending and the problems that would ensue with regard to his immigration status would be significant. He has the support of family and should that continue, along with any employment will go a way towards his remaining substance free… Should [the applicant] remain substance free, there is little likelihood he will commit further offences.

I note that Mr Simmons also records, based on his discussions with FSKY, that the Applicant has undertaken ‘five or six residential drug related programs’. He has also undertaken a large number of courses, evidence of which was before the Tribunal, both while incarcerated and in the community, sometimes as the result of a Court order. While there was an abating of his offending in 2014 and 2015 up until the incident involving P, none of the other courses appear to have had much of an effect on preventing [the applicant] returning to re-offending.

Because Mr Simmons’ most recent conclusions were qualified by the conditions of [the applicant’s] knowledge of the potential effect on his migration status and the existence of a supportive family, both of which have not had a material effect in the past, I prefer the conclusion of the previous Tribunal that there is at least a low to moderate risk of [the applicant] re-offending.

49    The Tribunal set out its conclusions at [142]–[148].

50    The Tribunal’s key passage regarding whether the applicant is a danger to the Australian community is set out at [142]:

… The Tribunal has carefully considered whether the Applicant is (presently) a danger to the community. Given the number of times [the applicant] has had the opportunity presented to him to rehabilitate but has nonetheless re-offended, the Tribunal concludes that he is. Of particular concern to me is [the applicant’s] evidence that, in terms of circumstances of the most recent serious offending where he recklessly injured his former partner, he was not affected by heroin… I therefore conclude that his significant heroin addiction problem was not a central factor in that serious offending… I consider there is some element of unwillingness of the Applicant to take responsibility for his actions when he has been directly involved in hurting people, and that is significantly concerning.

51    At [143]–[144], the Tribunal considered the various protective factors that would reduce the applicant’s chances of reoffending should he be released into the community. Those include the offer of living with his sister SP and her husband HT; the other offer to live with his sister LP; and the employment offer from his sister SP. However, as explained in [143]–[144], the Tribunal evidently did not consider these factors would significantly reduce the applicant’s chances of reoffending.

52    The Tribunal acknowledged that employment is a significant positive factor in reducing a person’s likelihood to reoffended, but noted that the employment offer was “somewhat inchoate” and the applicant’s proposed role was “somewhat embryonic”. The Tribunal also noted that the applicant was not aware of SP’s early morning starts. The Tribunal said at [142] “it did not seem to me that [the applicant] was invested in a clear plan to work at the café, but instead say it as an option for him”. The Tribunal referred to the previous employment arranged by HT for the applicant, which “petered out after a relatively short period” (at [143]).

53    The Tribunal also noted that the applicant has previously lived for long periods in the household of SP and HT and their children. The Tribunal said at [143] “the provision of stable accommodation with family members – who I consider are obviously supportive – has not been a protective factor in the past”.

54    The Tribunal made some key conclusions regarding the applicant’s likelihood of relapse in [145]–[146], set out in full below:

[The applicant] has completed several targeted courses to encourage modified behaviour during various periods in prison but has invariably gone on to re-offend. It is accepted that he has been free of heroin for several years now, but that is in the context of a custodial and therefore protective environment and while on a methadone treatment regimen. Several warnings given to him by the Department, in 2006 and 2010 about the need to modify his behaviour or risk jeopardising his migration status have had no effect on curtailing his conduct.

I am not convinced that [the applicant’s] creditable abstinence from drug-taking in detention completely removes the element of risk of re-offending, especially as it was not his major vice of heroin that was apparently a factor in his most recent serious offending in 2015 involving the injury to P. Consequently, I find there are reasonable grounds to conclude that [the applicant] is a danger to the community.

Grounds of review

55    The applicant’s grounds of review are set out as follows in the amended originating application dated 19 October 2021:

1.    The Tribunal’s decision is affected by jurisdictional error in that, in purporting to assess the level of risk that the Applicant posed to the community pursuant to s 36(1C)(b), the Tribunal erred in finding that a “low to moderate risk of reoffending” equated to a “high risk of reoffending” as required by law. In doing so the Tribunal was irrational and illogical in its reasoning, which no rational or logical decision maker could arrive at on the same evidence.

3.    The Tribunal’s decision is affected by jurisdictional error in that it erred in not applying the correct legal principle in relation to whether the Applicant is a danger to the Australian community pursuant to s 36(1C)(b). The Tribunal has applied the incorrect legal principles, and pursuant to s 5(1)(f) and (j) of the ADJR Act the decision is ultra vires.

5.    The Tribunal’s decision was affected by jurisdictional error when it failed to consider that there has been a particularly long lapse in time since the Applicant last offended and relapsed into heroin use, and that the Applicant was now in a different stage of his life.

6.    The Tribunal’s decision was affected by jurisdictional error when it failed to take into consideration the causal link between the Applicant’s risk of reoffending and the Applicant’s heroin use.

56    I note that the amended originating application no longer pressed grounds 2 and 4 of the originating application, however, the parties retained the original numbering of the grounds. I have done the same in these reasons.

Grounds 1 and 3

57    Grounds 1 and 3 both take issue with the Tribunal’s assessment of “danger” in the context of s 36(1C)(b), and it is convenient to deal with them together.

58    By ground 1, the applicant submits that the Tribunal was irrational or illogical in its reasoning, in particular by finding that while the Applicant had a “low to moderate risk of reoffending” that satisfied the “high level of risk” suggested by s 36(1C). By ground 3, the applicant submits that the Tribunal erred by applying the incorrect legal principles in its assessment of whether the applicant is a danger to the Australian community.

59    Before considering the parties’ submissions, it is convenient to set out the relevant legal principles relating to the assessment of “danger” in s 36(1C)(b).

60    Section 36(1C) was inserted into the Migration Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (2014 Amendment Act). The section was intended to codify Article 33(2) of the 1951 Convention Relating to the Status of Refugees (Convention): see Explanatory Memorandum to Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload) Bill 2014 (Cth) at 12 (Explanatory Memorandum).

61    Article 33 of the Convention prohibits contracting states from expelling refugees. However, it contains a carve-out for refugees who constitute a danger to the community. Article 33 reads:

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.

62    The 2014 Amendment Act removed most references to the Convention from the Migration Act, to instead create “a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention” and to “codify Australia’s interpretation of these obligations within certain sections of the [Migration Act]”: see Explanatory Memorandum at 10; KDSP at [16] (Bromberg J).

63    Prior to the 2014 Amendment Act, decision-makers could refuse a protection visa based on Article 33(2) of the Convention.

64    In WKCG, the Tribunal considered the exception provided by Article 33(2) of the Convention. In the oft-cited passage from WKCG, Deputy President Tamberlin described “danger” as used in Article 33(2) in the following terms:

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… 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.)

65    WKCG also contains a list of relevant considerations for determining whether a person constitutes a “danger” to Australia. The Tribunal quoted extensively from this part of the decision at [112]–[113], noting that the considerations have been commented on favourably in this Court. The Tribunal was also careful to emphasise that while these considerations are a useful list, it is not exhaustive and regard must be had to all the circumstances of an individual case. Deputy President Tamberlin said at [26]–[28]:

The question as to whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question regard must be had to all the circumstances of each individual case.

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 of the Australian community.

The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister of Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:

Rehabilitation is never certain. Once cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.

66    In DOB18 v Minister for Home Affairs (2019) 269 FCR 636, Logan J considered the observations of Deputy President Tamberlin regarding “danger” in Article 33(2), in relation to the statutory codification in s 36(1C):

[75] This does not mean that the “danger” must be proved to demonstration. In s 36(1C), it is a subject for Ministerial “satisfaction”. That is a congruent legislative response to the requirement found in Art 33 of the Refugee Convention that there exist “reasonable grounds for regarding”. But the satisfaction must be that the person is and will into the indefinite future be a danger, not that the person once was a danger.

…

[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.)

67    Justice Bromberg in KDSP stated at [54]–[55]:

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], the word “danger” in s 36(1C) means “present and serious risk”. Nor is any past criminality sufficient to engage s 36(1C)(b). To engage that subsection a person must have been convicted by a final judgment of a “particularly serious crime” (as defined by s 5M) and therefore be a “danger to the Australian community”.

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.

(Emphasis added.)

68    For present purposes, it is unnecessary for me to determine whether or not there is any real difference between the standards of “danger” expressed in WKCG, DOB18 and KDSP. The Tribunal’s reasons identify the standard of danger articulated by Bromberg J in KDSP, and noted that the considerations in WKCG provided a useful framework to assist the assessment. I see no error with that approach. For reference, the Tribunal said at [127]–[128] of its reasons:

DP Tamberlin referred in WKCG to the words in Article 33(2) of the Convention (now essentially mirrored in section 36(1C)) as ‘plain and simple English’. Bromberg J stated in his judgment in [KDSP] at [54]:

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.

With respect, I think this is the sensible way to approach the assessment.

69    By ground 1, the applicant submits that the Tribunal engaged in irrational or illogical reasoning, pointing specifically to the Tribunal’s conclusion at [141] that there is “at least a low to moderate risk of [the applicant] offending” and arguing that this does not meet the “high level of risk” threshold identified in KDSP.

70    The respondent emphasises the Tribunal’s multifactorial assessment of danger — that is, an assessment of danger in this case shouldn’t just be tied to the assessment of the likelihood of recidivism, but to other factors like those identified in WKCG. The respondent submits that the applicant has conflated the Tribunal’s adoption of Mr Simmons’ evidence about the risk of recidivism, with the broader inquiry as to whether someone constitutes a “danger”.

71    I do not accept the applicant’s submission that the Tribunal’s reasons equate a “low to moderate risk” with the “high level of risk” test. The “low to moderate risk” finding was made about the applicant’s risk of re-offending, in the context of the Tribunal considering Mr Simmons’ evidence. This was but one factor the Tribunal considered, being a constituent part of the overall assessment of danger. As noted above, the Tribunal also considered, for example, aggravating circumstances surrounding the applicant’s offending; the length of the applicant’s criminal history; and the perceived ineffectiveness of previous drug rehabilitation programs, employment and accommodation.

72    By ground 3, the applicant submits that the Tribunal referred to the correct principles identified above but then incorrectly adopted a standard that “the element of risk must be completely removed”. This submission is based on the conclusions at [146] (extracted above).

73    As the applicant submits, there is no requirement in s 36(1C) that the element of risk be completely removed. However, I cannot accept the applicant’s submission that the Tribunal adopted this requirement. The applicant’s submissions take the Tribunal’s words at [146] out of context. The applicant said of the Tribunal’s conclusion:

In its application of the s 36(1C)(b), at paragraph [146], the Tribunal stated that it is “not convinced that [the applicant’s] creditable abstinence from drug-taking in detention completely removes the element of risk of re-offending… . Consequently, I find there are reasonable grounds to conclude that [the applicant] is a danger to the community”.

74    It is important to note the words in [146] omitted from the applicant’s quotation: “… especially as it was not his major vice of heroin that was apparently a factor in his most recent serious offending in 2015 involving the injury to P”. The Tribunal canvassed several reasons throughout its decision in assessing whether the applicant was a danger to the community. The Tribunal in [146] was not looking to impose a new test, but was merely remarking that the bare fact of abstinence from drugs did not remove the risk of re-offending. The Tribunal then again highlighted that the applicant was not affected by heroin at the time of his most recent serious offending — and read fairly, this factor plays an important role in the Tribunal’s conclusion that the applicant is a danger to the community.

75    For the reasons above, grounds 1 and 3 are not made out.

Ground 5

76    By Ground 5, the applicant claims that the Tribunal committed jurisdictional error by failing to give “appropriate consideration” to the length of time since the applicant’s last offending and heroin use, and that the applicant is now at a different stage of life.

77    The Tribunal is obliged to have regard to claims which are the subject of a substantial, clearly articulated argument relying on established facts: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]. The Tribunal’s obligation to consider these matters is one which requires engagement in an active intellectual process: Minister for Home Affairs v Omar (2019) 272 FCR 589 at [36]–[37].

78    The applicant’s last offending took place when he was 29 years old. The applicant is now 37 years old. The applicant draws attention to his lengthy period of abstinence from heroin and offending, and submits that he is now at a different stage of life which impacts the likelihood of any potential relapse or reoffending. The applicant further submits that the Tribunal was given oral evidence by an expert, Warren Simmons, about the “scientific and developmental basis behind the different stages of life” and how that impacts the risk of relapse or reoffending. I note that no transcript of the Tribunal hearing was before this Court in evidence in this application.

79    The respondent submits that the Tribunal complied with its obligations to consider the Applicant’s claims regarding his stage of life and the long time since offending.

80    The Tribunal’s key conclusions dealing with these submissions are set out at [145]–[146]:

FSKY has completed several targeted courses to encourage modified behaviour during various periods in prison but has gone on to re-offend. It is accepted that he has been free of heroin for several years now, but that is in the context of a custodial and therefore protective environment and while on a methadone treatment regimen. Several warnings given to him by the Department, in 2006 and 2010 about the need to modify his behaviour or risk jeopardising his migration status have had no effect on curtailing his conduct.

I am not convinced that FSKY’s creditable abstinence from drug-taking in detention completely removes the element of risk of re-offending, especially as it was not his major vice of heroin that was apparently a factor in his most recent serious offending in 2015 involving the injury to P. Consequently, I find there are reasonable grounds to conclude that FSKY is a danger to the community.

81    The applicant points to [146] in support of this submissions, stating that while the Tribunal refers to the period of abstinence, it does not turn its mind to material provided in written and oral evidence about the applicant’s stage of life.

82    However, as the respondent submits, a fair reading of the Tribunal’s reasons demonstrates that the Tribunal had regard to these claims at several points in the decision. For example:

(a)    The Tribunal notes the applicant’s submissions at [40]–[41] that the applicant had not taken heroin since 2014 and that he has a loving and supportive family awaiting him if he were released into the community;

(b)    The Tribunal notes the respondent’s submissions at [43] that while the applicant has abstained from heroin use in recent history, in previous attempts at rehabilitation he has gone on to re-offend;

(c)    The Tribunal summarises the evidence given by the applicant at [45]–[72], which includes references to the applicant’s intention to “stay away from old friends, to keep busy and keep positive” (at [58]); the applicant’s plans to get a job and seek help from a youth worker and support group (at [59]); and, when questioned about why the Tribunal should accept he won’t reoffend now (as the applicant had re-offended after previous Departmental warnings), the applicant’s answer that “back then I was young and wasn’t taking things seriously” (at [71]).

(d)    The Tribunal summarises Simmons’ evidence at [73]–[78], including the following passage at [76]:

Mr Simmons said maturation plays a big part in the ability of a person not to return to drug use. Mr Simmons said it is a positive sign that FSKY has not taken drugs in prison and if he had family support, work and counselling in the community, it would lower the risk of re-offending, but if he became homeless and re-engaged with his old peer group, then there would be a higher risk.

83    The references to the applicant’s life stage and period of abstinence and non-offending demonstrate that the Tribunal has grappled with the applicant’s submissions. However, as the Tribunal notes at [145], it was clearly concerned that the applicant has been either in prison or in immigration detention throughout the period, thus restricting access to heroin and providing a “protective environment”.

84    It was open for the Tribunal to make the conclusions that it did, and its reasons do not betray that it failed to give appropriate consideration to the evidence and submissions put before it.

Ground 6

85    By ground 6, the applicant submits that the Tribunal failed to take “appropriate” consideration of the causal link between the applicant’s heroin use and his risk of reoffending. The applicant contends that he made submissions to the Tribunal to the effect that the Applicant’s offending was caused by his heroin use disorder, and that these submissions were supported by written and oral evidence from Simmons. The applicant does not contend that the Tribunal failed to give consideration to the applicant’s diagnosis and its connection to his offending, but rather that the Tribunal did not give the matter “proper, genuine and realistic consideration” or engage in an “active intellectual process”: Singh v Minister for Home Affairs (2019) 267 FCR 200 at [30]; citing Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352.

86    As with other grounds, the respondent submits that the Tribunal’s reasons show that it considered Simmons’ evidence (including that of the applicant’s heroin use disorder). The summary of Simmons’ evidence at [73]–[78] notes the applicant’s diagnosis of heroin use disorder and outlines evidence Simmons gave as to the usual treatment options. The respondent submits that it was open for the Tribunal to make the conclusions that it did, in particular its concern that the applicant was not affected by heroin at the time of his most recent offending.

87    To the extent that the applicant submits that Simmons gave further oral evidence regarding heroin use disorder, I am again confined to the Tribunal’s reasons as there is no evidence of the oral submissions in the Tribunal hearing before this Court.

88    The Tribunal’s reasons clearly show that it considered the evidence of Simmons, and that it considered links between the applicant’s offending and his heroin use disorder. For example, at [142], the Tribunal stated:

…The Tribunal has carefully considered whether the Applicant is (presently) a danger to the community. Given the number of times FSKY has had the opportunity presented to him to rehabilitate but has nonetheless re-offended, the Tribunal concludes that he is. Of particular concern to me is FSKY’s evidence that, in terms of circumstances of the most recent serious offending where he recklessly injured his former partner, he was not affected by heroin. In his evidence at the hearing, the Applicant said that he had taken ‘some sleeping pills’ during the day. I therefore conclude that his significant heroin addiction problem was not a central factor in that serious offending.

(Emphasis added.)

89    As the passage above shows, the Tribunal did not accept counsel’s submission (noted at [95]) that most of the applicant’s offending was related to his heroin use, and that heroin use had been a “contributing factor” in the way his most recent offending occurred. The Tribunal further reiterated at [146]:

I am not convinced that FSKY’s creditable abstinence from drug-taking in detention completely removes the element of risk of re-offending, especially as it was not his major vice of heroin that was apparently a factor in his most recent serious offending in 2015 involving the injury to P.

90    These conclusions were open to the Tribunal. Ground 6 is not made out.

Conclusion

91    As none of the applicant’s grounds have been made out, I will dismiss the application and make the usual order as to costs.

Associate:

Dated:    12 May 2022