Consideration
28 It is first appropriate to return to the Tribunal's reasons.
29 Throughout its reasons, the Tribunal consistently referred to the need to consider whether the applicant was a "danger to the Australian community": at [12], [45]-[46], [76], [101]-[103], [105]-[106], and see [63] and [88]. The applicant referred to [50], where the Tribunal asked itself whether there was a real or significant risk or possibility of harm to "one or more members" of the Australian community: and see [102]-[103]. It is apparent from the reasons at [50], that the formulation of "one or more members" is from Tamberlin DP's observations in WKCG at [26] and [31], as applied by Constance DP in BHYK and Minister for Immigration and Citizenship [2010] AATA 662 at [35]. Tamberlin DP observed at follows at [25]-[26]:
[25] The question 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 Art 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.
[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.
(Emphasis in original)
30 I note that before the Tribunal, the applicant submitted in his statement of facts, issues and contentions at [22] that "the Tribunal should apply the principles stipulated in WKCG to determine that he is not a danger to the Australian community". He also submitted that "[i]n determining whether a person is a danger to the community, WKCG states the relevant guidelines at [26]".
31 Turning to address the four matters relied on by the applicant to support his construction.
32 First, it may be accepted that an Act must be read as a whole, and that words and phrases are used consistently throughout: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at 618. However, the presumption is readily rebuttable if the context compels a different construction: Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; (1921) 29 CLR 579 at 590; McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1979) 144 CLR 633 at 643 (McGraw-Hinds). It is also recognised that the presumption is less strong in respect of words within large and frequently amended statutes: Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Industry, Science and Research [2011] FCA 1133; (2011) 197 FCR 374 at [35]; McGraw-Hinds at 643. The Migration Act plainly falls within that description.
33 The applicant sought to gain support for this submission from observations by Rangiah J (North J agreeing) in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 at [55] (Moana), and by Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189; (2019) 168 ALD 276 at [66].
34 Both cases were concerned with s 501(6)(d)(v) of the Migration Act. In Moana at [55], Rangiah J observed that:
Paragraph (d) of s 501(6) requires the Minister to evaluate whether there is a significant risk that the person would engage in certain harmful conduct towards a person in Australia or a segment of the Australian community or the Australian community as a whole. The conduct described in paragraph (d) is: engaging in criminal conduct; harassing, molesting, intimidating or stalking a person; vilifying a segment of the Australian community; inciting discord; or representing a danger to the Australian community.
35 Section 501(6)(d) relates to the power to refuse a visa on character grounds. Its terms are focused on conduct targeted at particular demographic group(s) (noting the description in [55] of Moana does not reflect the entirety of the language in s 501(6)(d), with the preceding subparagraphs variously referring inter alia, to a "segment of the community"). The reference in s 501(6)(d) to segment of the community is to be seen in that context. Rangiah J's description in [55] of the Australian community "as a whole" is in the context of, and in contradistinction to, the reference to a segment of the community within the same provision. The observations of Rares J must also be considered in that context.
36 Further, there is nothing in Moana, or in the context of the comments of Rares J, which suggests that the meaning of "Australian community" was in issue. The choice of the word "whole" does not appear to have been a result of any live issue or debate. In that context, there is nothing in either judgment to suggest there was any consideration of the use of the phrase in other provisions. It is also unclear what is meant by the phrase "whole" of the Australian community. As explained above at [35], the most obvious explanation is that the term was chosen in contradistinction to the "segment" of that community referred to in s 501(6)(d)(v), rather than indicating a construction of broader application.
37 That said, even if it be accepted for the purpose of argument that "the Australian community" in s 501(6)(d)(v) (and the other provisions where there is the reference to both phrases) refers to the Australian community as a whole, it does not necessarily follow that is the construction to be given to the phrase in s 36(1C).
38 There is a ready explanation for the language used in s 36(1C). As accepted by the applicant, the phrase "danger to the Australian community" reflects Australia's understanding of its international obligations under Art 33(2) of the Refugees Convention.
39 This is consistent with the Explanatory Memorandum, which stated:
New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention.
See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) [1236].
40 As the first respondent contended, the language in s 36(2C) is also consistent with the language of Art 33(2) of the Refugees Convention. Article 33(2) is as follows:
Article 33
PROHIBITION OR EXPULSION OR RETURN ("REFOULEMENT")
…
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.
41 Considering that s 36(1C) mirrors the language of the Refugees Convention explains the difference in language between ss 36(1C)(b) and 36(2C)(b)(ii), as compared to other provisions of the Migration Act. As such, it cannot be taken that Parliament necessarily "intended that 'the Australian community' [in s 36(1C)(b)] means the whole of the Australian community, and not 'a segment' of it".
42 Second, as the first respondent correctly contended, the passages from Lauterpacht and Bethlehem referred to above at [20], when read in context, do not assist the applicant. The reference at [192] of the publication, to "the community" (in "danger to the community") being "intended as a reference to the safety and well-being of the population in general" was to draw a distinction with "the national security exception which is focused on the larger interests of the State". It cannot be taken in that context, to be a reference to the community as a whole, in the manner contended for by the applicant. There is nothing in that passage or the context in which it appears, to indicate that the authors addressed the issue of whether a risk to the community can involve a risk to individuals (or a segment of the community), as distinct from the community as a whole.
43 Third, it may be accepted that the Court ought to give effect to the plain and ordinary meaning of the words used. However, that meaning must be considered in the context in which the words are used. The applicant contends that the plain and ordinary meaning of "community" is "a body of people or things viewed collectively; the people as a group", or "all the people of a specific locality or country". By contrast, the first respondent submitted that on the ordinary meaning of the term, a person may pose a danger to the community by harming individuals within it. Read in context, the meaning contended by first respondent is to be preferred. There is an obvious connection between the conviction for a particularly serious crime referred to in s 36(1C)(b) and the danger to the Australian community. As the first respondent submitted, it is unlikely that the danger referred to in s 36(2C)(b)(ii) was intended to be limited to criminal offences affecting Australian community as a whole, in the manner contended by the applicant.
44 Fourth, as to the applicant's submission that its construction is to be preferred because s 36 is beneficial in nature and affects the personal liberty of the subject: Although the provision may be regarded as beneficial, that characterisation must be tempered. The exclusions that apply to the grant of a protection visa, in ss 36(1C) and 36(2C), are intended not only to reflect international law but to operate for the benefit of both the receiving State and the population of the receiving State. Further, that "beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively": New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 at [92] per Gageler J, and see s 15AA of the Acts Interpretation Act 1901 (Cth). The task therefore remains one of statutory construction.
45 The first respondent also submitted that a beneficial reading should not lead to an absurd result, or one which could not possibly have been intended, namely "requiring dangers not to 'individual' persons within the community, but to every member of the whole Australian community".
46 This draws attention to the application and consequences of the applicant's construction.
47 As explained above, the applicant's submission reflects its approach (arising from the construction contended for at [24] above) which sets up a dichotomy between a segment of the community and the Australian community, such that references to "the Australian community" in the Migration Act are to the community as a whole. Applying that to the provision in question, if a person is a danger to a segment of the community and not to the community as a whole, s 36(1C)(b) would not be satisfied.
48 The applicant submitted that "the quantitative element of danger to the Australian community requires that the danger extend beyond one or more members of the community, beyond a segment of the community" and "that it is concerned with the safety and wellbeing of the Australian community at large or in general or as a whole". This, it was submitted, is in addition to the qualitative aspect of the analysis requiring a risk of affecting the Australian community as a whole in the future. It follows, on the applicant's submission, that if the conclusion of the fact finder is that an applicant has been convicted by a final judgment of a particularly serious crime, and there is a high likelihood of recidivism for those types of crimes, unless the crime(s) relate to or impact on the community as a whole, both the quantitative and the qualitative aspects of the assessment required by s 36(1C)(b) would not be satisfied.
49 The effect of the applicant's construction was illustrated during his oral submissions. Although the applicant submitted that the assessment would depend on the facts of a case, he described the types of offences capable of satisfying this provision as those which have a "ripple effect" in the community. The applicant submitted that conduct will be on a spectrum. He provided as an example, at one end of the spectrum, offences of domestic violence. It was submitted that such offences, by their nature, have one intended victim or target (even to the extent of murder), and therefore if there is a risk of recidivism for the same type of offending, only one person can potentially be affected, with the result that the criteria of being a danger to the community would not be satisfied. Offences of this nature were described by the first respondent as "personal". At the other end of the spectrum, an example given by the applicant was of the commercial importation of drugs, which was said to affect the whole community, and therefore be capable of satisfying the criteria contended for.
50 The submission characterising offences such as domestic violence as potentially affecting only one intended victim where there is a risk of recidivism, fails to recognise the wider present and future risk that may, depending on the facts, be drawn from such offences. It fails to appreciate the potential impact of such offending on the community and that it is an offence of violence. Indeed, other crimes of violence are often directed to one intended victim known to the offender. Moreover, offences of domestic violence plainly have potential to cause a ripple effect in the community. One example of that ripple effect is, as submitted by the first respondent, the propensity of domestic violence to impede victims' participation in the community. This reflects the artificiality of the applicant's submission, which involves an assessment based on a perceived characterisation of offences. It also reflects the problem with attempting to articulate the implementation of the construction contended for.
51 Indeed, the facts of this case highlight the difficulties which arise on the applicant's construction. The applicant's offences are listed above at [5]. The Tribunal explained the offences in more detail: at [53]-[67]. The offences of recklessly cause injury and the unlawful assault offences both involved violence against former girlfriends, the details of which are provided: at [55]-[56]. If these are considered domestic violence, then the applicant's submission that this type of offence affects one person is dispelled simply by considering that the applicant committed offences against two former girlfriends (noting also that passers-by and friends of the applicant and victim were also drawn into the incidents). In addition, the offence of affray involved the applicant concealing a knife while other offences were random: at [57]-[59]. The Tribunal concluded at [63]:
The Applicant's violent offences, particularly those that involve violence against women, are serious and risk the safety of the community. Victims can potentially suffer serious harms including injury, disablement or death as the result of violent offending.
52 Even using the applicant's terminology, this offending plainly had a ripple effect in the community. Further, the nature of particularly serious crimes within s 36(1C)(b) (as defined in s 5M) are such that a segment of the community or less (as opposed to the community as a whole) are likely to be affected. For example, serious offences involving violence may target women or children, certain types of venues or locations, or some other particular demographic. However, on the applicant's construction, a danger to a segment of the Australian community is not capable of satisfying s 36(1C)(b).
53 During oral submissions the applicant attempted to support his construction by reference to CKL21 v Minister for Home Affairs [2022] FCAFC 70, where the Court found that the Minister had made irrational findings as to whether that appellant would present an "unacceptable risk" to the Australian community if he were to be released. The offence committed was murder. The appeal was allowed on the basis that the Minister's reasons did not disclose a probative basis for the finding that there was a risk that the appellant would reoffend in a similar manner: at [86]. This case does not address the issue before this Court as to what constitutes "the Australian community". The issue was whether in fact there was an "unacceptable risk". I note as an aside, that the Minister in making the decision applied WKCG in respect to the concept of the Australian community, which was not the subject of any complaint or argument before the primary judge on review or on appeal. This decision turned on its facts, as the Court was at pains to make clear: see, for example, [75] and [87].
54 I therefore accept the first respondent's submission that the applicant's construction would render s 36(1C)(b) very narrow, such as to lead to an absurd result. The construction contended by the applicant is therefore unlikely to be the intended construction, and is unsupported by precedent.
55 The applicant also submitted that if the first respondent's construction is accepted, there is no work for the second part of s 36(1C)(b) to do. That is, it was submitted that the danger to the Australian community would simply be satisfied by establishing the person has been convicted by a final judgment of a particularly serious crime. I do not accept that submission.
56 It is plain that if the fact finder is satisfied that the applicant has been convicted by a final judgment of a particularly serious crime (as defined), whether the applicant is a danger to the Australian community will depend on an assessment of the particular facts and circumstances. Those relevant facts and circumstances extend beyond the nature of the offence(s) committed to include, for example, prospects of rehabilitation: see WKCG at [26].
57 In this context I note that WKCG was cited recently in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 514. At [37]-[38] Collier J observed that there is considerable force to the concept that "danger to the Australian community" for the purposes of s 36(1C)(b) is the use "of ordinary English, has no technical meaning, and ought to be construed in its context". At [42], her Honour observed that "the question whether a person constitutes a danger to the Australian community is one of fact and degree". Collier J referred to what was said to be a conflict between WKCG and the observations of Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 regarding assessment of the degree of risk. Her Honour observed at [46] that she considered there was no material conflict between the legal principles as explained in each. I note that the Tribunal in that case appeared to adopt the same approach, of which no complaint was taken. As illustrated by these cases (and others), although there has been debate as to the construction of s 36(1C)(b) and the passages in WKCG discussing it, that debate has been confined to assessing the degree of risk to the community.
58 DMQ20 reflects the two aspects of s 36(1C)(b), evident from the provision. As the applicant submitted, in order for s 36(1C)(b) to operate at all, the person must have been convicted by a final judgment of a particularly serious crime. It is only on the establishment of that premise that the second stage is engaged. That second stage is a limiting stage to determine whether the person is a danger to the Australian community.
59 I therefore do not accept that the phrase "the Australian community" in s 36(1C)(b), means that there must be a danger to "the whole of the Australian community" (and not less than, including a segment of the community), in the manner contended by the applicant. What constitutes a danger to the Australian community stands to be determined upon the facts and circumstances of individual cases. A person may pose a danger to the community by harming individuals within that community. The applicant has not established the premise underpinning this ground. It follows that the applicant has not established error by the Tribunal in its reference to the guidance in WKCG.
60 The applicant has not established this ground.