2.4.2.3 Protection of the Australian community from criminal or other serious conduct (Primary Consideration A)
30 Primary Consideration A required the Tribunal to have regard to consider the protection of the Australian Community from criminal conduct: Direction 79 para 13.1. In particular, it required the Tribunal to have regard to:
(1) the nature and seriousness of Mr DKN's conduct to date; and
(2) the risk to the Australian community should he commit further offences.
31 In turn, in considering the first of these matters, by virtue of para 13.1.1(1) the Tribunal was required to have regard relevantly to:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
…
32 The Tribunal found that Mr DKN's offences using carriage services to menace, harass or cause offence, and to threaten serious harm and to kill were crimes of violence which must therefore be viewed "very seriously" applying cl 13.1.1(a) of Direction 79 (TR at [44]-[49]). The Tribunal also characterised Mr DKN's offence of common assault on his former partner in 2011 as a violent crime against a woman, and found that it was therefore required to view the offence very seriously even though the Tribunal accepted that the offending was at the low end of the spectrum (TR at [51]-[54]). The characterisation of these offences as "violent" is challenged by ground 3 of the application and I consider the Tribunal's reasons for so finding in the context of addressing that ground. In addition, the Tribunal regarded the fact that Mr DKN's carriage services offences included abuse of members of the police force, as well as the sentences of imprisonment imposed on Mr DKN in 2015 and 2016, were further reasons to view this offending as serious, applying paras 13.1.1(c) and 13.1.1(d) of Direction 79 (TR at [60] and [64]).
33 The Tribunal found, as was accepted by Mr DKN, that the 2016 convictions "represented an escalation in his offending" in line with the views of the sentencing judge (TR at [67]; 2016 Sentencing Remarks of Wilmoth J at [41], CB43). The Tribunal found that Mr DKN's offending was "frequent", "consistent and repetitive" in the sense that it revealed "a lack of respect for Australia's law enforcement framework" and "a consistent preparedness to threaten and harass others through his misuse of carriage services" (TR at [68] and [69]). The Tribunal found that the cumulative effect of Mr DKN's offending had been "deleterious to not only those immediately affected but also to the Australian community at large" (TR at [70]).
34 The Tribunal was also required to give consideration to the risk to the Australian community if Mr DKN should commit further offences in considering Primary Consideration A (para 13.1, Direction 79). In considering this factor, the Tribunal was required by para 13.1.2, "to have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
35 In addressing this factor, the Tribunal, among other things, was satisfied that the risk of reoffending was "significant" although not likely, referring among other things to the sentencing judge's remarks in 2016 that "[t]here can only be very guarded prospects for [Mr DKN's]… rehabilitation" (TR at [77] and [78]). In this regard, the Tribunal acknowledged that its assessment stood in "stark contrast" to the opinion expressed by the consultant psychologist, Mr Taylor, in his report that Mr DKN was at no discernible risk of re-offending (TR at [80]). The Tribunal's finding that it did not give "any weight" to Mr Taylor's opinions (TR at [81]) is challenged by Mr DKN by ground 2 of his application and it is convenient to consider the Tribunal's reasons in this regard later in the context of considering that ground.
36 The Tribunal accepted that Mr DKN's more recent offending occurred in the context of his substance abuse and mental instability (TR at [84]; 2016 Sentencing Remarks of Wilmoth J at [42], CB43). As to substance abuse, the Tribunal was not confident that, if released into the community, Mr DKN would not again indulge in what it considered had been a "long-standing habit" (TR at [85]). In so finding, the Tribunal took into account that there was no evidence that Mr DKN had attended Alcohol Anonymous meetings, and that Mr DKN had resumed his drinking and use of methamphetamine within approximately two months after being released into the community in November 2015 (TR at [86]).
37 As to mental health issues, the Tribunal did not accept Mr DKN's submission that there was little risk of him re-offending because his offending was in a material way the result of serious mental health issues and he is now engaged in a mental health care plan (TR at [87]). First, the Tribunal considered that this submission underplayed the role played by Mr DKN's substance abuse in terms of his recent offending, notwithstanding the Tribunal's acceptance of Mr DKN's mental health issues (TR at [89]-[90]). Secondly, the Tribunal did not accept Mr DKN's submission that his most recent offending occurred before his mental health issues were diagnosed which he was now addressing via a mental health care plan. To the contrary, the Tribunal found that the diagnoses were made, and a treatment plan prescribed, before his most recent offending in 2016 (TR at [91-[92]). In this regard, the Tribunal at [92]:
… note[d] [Mr DKN's] failure to heed the warning given to him in his sentencing in November 2015 about the necessity to take medication, a warning that was repetitive of one given by a prison psychiatrist to [Mr DKN] while he was still in remand.
38 Thirdly, the Tribunal did not accept that Mr DKN's mental health issues were currently being treated, or would be treated if he were released into the community, because there was "no material before me on the basis of which I could be satisfied that [Mr DKN's] mental health issues are currently being treated or that they would be treated if he was released into the community" (TR at [93]; emphasis added). In this regard the Tribunal found that questioning at the Tribunal hearing disclosed that Mr DKN no longer takes any medication for mental health issues, presumably on the basis that any such issues are now resolved, and that Mr DKN's involvement in certain life skills and other courses did not amount to a meaningful engagement with a mental health care plan (TR at [94]). This finding is also challenged by Mr DKN who seeks to lead the medical reports annexed to his second affidavit to refute the Tribunal's finding.
39 Fourthly, the Tribunal did not accept Mr Taylor's opinion that Mr DKN's psychological distress had wholly remitted or that Mr DKN has "excellent foundations for safeguarding and maintaining his psychological help" (at [95]-[96]). The Tribunal found that Mr Taylor "was not simply acting as an independent expert opining impartially on matters within his field of expertise" (TR at [97]). In addition, Mr Taylor had referred to the need for Mr DKN to have future and timely sessions with a clinical psychologist, which suggested in the Tribunal's view that much depended on Mr DKN's ongoing willingness to seek and engage with appropriate treatment outside an institutional context (TR at [98]). The Tribunal also took into account that no explanation was given for the failure to call Mr Taylor to give evidence and considered that this lessened the weight which the Tribunal might otherwise have given to his opinions (TR at [99]).
40 Furthermore, while Tribunal accepted that Mr DKN was remorseful, the Tribunal suspected that any insight into his offending was somewhat qualified (TR at [102]).
41 As to other factors which might bear upon the risk of reoffending, the Tribunal considered that Mr DKN's history suggested that his work prospects were not particularly bright (TR at [103]). The Tribunal also accepted that Mr DKN had a support network in the Moroccan community in Victoria and Sydney, and that Mr DKN's family in Sydney were also supportive (TR at [105]-[107]). However, it found that this support network had not been effective in the past to prevent him from offending (TR at [108]).
42 The Tribunal concluded on Primary Consideration A that Mr DKN's offending was serious and repetitive, and that there was a significant risk of him re-offending (TR at [110]). It found that the protection of the Australian community weighed heavily against the Tribunal being satisfied that there was another reason to revoke the cancellation decision (TR at [111]).