The tribunal decision
8 It was not in contest before the Tribunal that the applicant met the refugee and complementary protection visa requirements. It was also not in contest that he has been convicted of a particularly serious crime. The only question for resolution was whether the applicant satisfied the criterion in s 36(1C)(b).
9 The Tribunal noted that about eight months after the applicant entered Australia, he started selling drugs, and from the age of 17 he has spent the majority of his life in and out of custody, with over 150 convictions spanning 19 years, more than 30 court appearances and multiple sentences of imprisonment: [17]-[18]. At [19], the Tribunal observed that the applicant's convictions included:
(a) numerous property offences such as burglary, theft and handling stolen goods;
(b) numerous offences concerning the possession and trafficking of illicit drugs, in particular, heroin; and
(c) a number of offences involving or suggestive of violence or a preparedness to commit acts of violence, such as assault, assault with a weapon and possession of a weapon.
10 The Tribunal described the applicant's most recent offending as follows at [20]-[22]:
[The applicant's] most recent convictions were in June 2017 and involved, amongst other things, offences of recklessly causing injury, criminal damage, unlawful assault and contravening a family violence safety notice. On these charges [the applicant] was sentenced to an aggregate term of imprisonment of 12 months.
The offending to which the June 2017 convictions relate was against a person [the applicant] characterises as his de facto partner or, in oral evidence, as his fiancée (… DFP). [The applicant] was said to have punched and choked DFP. The sentencing Magistrate characterised the relevant events in these terms: "…the assaults you subjected her to were serious. You attempted to choke her after putting her in a headlock".
Injured in the course of assaulting DFP, [the applicant] was admitted to the Alfred Hospital whereupon he entered another patient's room, stole the patient's wallet and, upon his release from hospital, proceeded to purchase over $800 worth of goods using credit cards contained in the wallet.
(footnotes omitted)
11 The Tribunal further described this latest incident as follows at [24]:
… the June 2017 convictions relate to what might be characterised as a domestic disturbance of 10 August 2016 and that the domestic disturbance on that date was not a one-off event (as reflected by the fact that, in August 2016, [the applicant] was the subject of a family violence safety notice).
(footnotes omitted)
12 The Tribunal further noted that while in prison as a result of his 2017 convictions, the applicant completed what he characterised as a "Violent Intervention Program" twice, but this did not prevent him from committing further acts of violence when subsequently taken into immigration detention. In August 2018 he was involved in an apparently unprovoked attack on another detainee, and in October 2019 he was said to have kicked and punched detention facility staff in the context of a "recent" episode of psychosis: [26].
13 The Tribunal also noted that the applicant's first custodial sentence was imposed in July 1999, comprising two months detention in a youth training centre. With the exception of the 2009, 2012 and 2016 years, custodial sentences were imposed for convictions in each year between 1999 and 2017, with the longest sentence being 18 months imposed in 2008: [25].
14 At [41]-[78] the Tribunal addressed legal arguments advanced for the applicant on the interpretation of s 36(1C)(b). In short, it was argued that:
(a) s 36(1C)(b) should be construed narrowly and restrictively because it is an exception to the prohibition on returning refugees to countries in respect of which they have a well-founded fear of persecution; and
(b) to come within the exception, the risk of danger:
(i) must be present and serious, citing in support DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636 (DOB18) at 657 [83] per Logan J; and
(ii) be, at the least, a risk of the commission of a particularly serious crime (as defined in the Act).
15 As to the argument that the risk of danger must be present and serious, the Tribunal referred to DOB18, where Logan J stated at 657 [83] that:
... it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a "risk", perhaps small. In my view, read in context, "danger" in s 36(1C) means present and serious risk. To the extent that what is stated in [WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (WKCG)] might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about "danger". In my view, it carries a narrower and more restrictive meaning than just "risk".
16 The Tribunal also had regard to WKCG. In that case, Deputy President Tamberlin (as he then was) rejected the contention that the danger must be present and reflect a real probability of harm. In rejecting that contention the Deputy President stated at [31]:
...it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm…
(emphasis in original)
17 The Tribunal noted that the WKCG and DOB18 formulations appeared to differ essentially in relation to the extent of risk required in order to constitute a danger, but did not decide which formulation to apply, holding that the risk of danger test was satisfied in relation to the applicant even adopting the more arduous DOB18 formulation of "present and serious" risk: [51], [56].
18 The Tribunal rejected the contention that there must be at least a risk of the commission of a particularly serious crime, reasoning that there is nothing in the text or context of s 36(1C) which would limit the danger concept to a risk of committing a particularly serious crime: [60]. Rather the question is whether there are reasonable grounds on which to conclude that the person is a danger to the Australian community: [77].
19 At [81]-[97] the Tribunal considered and rejected the submission that the applicant's offending of the kind in which he had engaged previously would not, if repeated, "constitute a danger to the community for the purposes of s 36(1C)". In particular:
(a) the Tribunal noted the breadth of the applicant's offending, stating at [86]:
… [the applicant's] past offending involved numerous property offences such as burglary, theft and handling stolen goods; numerous offences concerning the possession and trafficking of illicit drugs, in particular, heroin, and a number of offences involving or suggestive of violence or a preparedness to commit acts of violence, such as assault, assault with a weapon and possession of a weapon.
(b) the Tribunal considered that the frequency of the applicant's past offending over a long timeframe "is strongly suggestive of a future in which [the applicant] continues to commit offences of the nature to which his past suggests he is inclined": [87];
(c) the Tribunal also considered that the kinds of offences which the applicant committed "are, in their nature, harmful to the Australian community": [88]. The Tribunal elaborated upon this in relation to property offences at [89], drugs at [90] and violent offences at [91];
(d) at [92] the Tribunal stated that especially in relation to drugs and violence, such offending did amount to "serious or significant" harm; and
(e) the Tribunal also rejected the applicant's submission that his offending was "insufficiently serious" having regard to the terms of imprisonment that were in fact imposed, reasoning that the imposition of any term of imprisonment reflects a view that the offence was serious: [94]-[95].
20 At [98]-[148], the Tribunal considered and found there was a "present and serious risk of [the applicant] reoffending":
(a) at [100] the Tribunal noted evidence from a psychiatrist of "favourable" prospects of rehabilitation, but reasoned that this was not inconsistent with presenting a present and serious risk of reoffending: [102]-[103];
(b) the Tribunal also approached the evidence relating to the applicant's prospects of rehabilitation cautiously, having regard to the assumptions and qualifications in that evidence: [104];
(c) the Tribunal engaged with the medical evidence and noted that the applicant's prospects of rehabilitation were contingent on stable housing, the availability of which was not established on the material before the Tribunal: [105]-[106]. Even if available, the Tribunal doubted that this would effectively mitigate the risk of reoffending given the applicant's extensive and enduring offending despite previous access to accommodation support: [107]-[109]. In considering his rehabilitation prospects, the Tribunal also took into account that: the applicant's prospects were contingent on treatment for opioid addiction, in which the applicant was usually only prepared to engage while in prison: [111]-[114]; there was no clear opinion that he would not engage in domestic violence again: [115]; and there was insufficient evidence to show his social support needs would be addressed: [116]-[123].
21 The Tribunal also did not accept the contention that the applicant was not fundamentally inclined to criminality, having regard to his history and the medical evidence: [124]-[128].
22 The Tribunal considered, but did not accept, the submission that there were plans in place to address root causes of the applicant's criminality: [133]. The Tribunal addressed the issues of homelessness: [134]; the applicant's heroin addiction: [135]-[138]; social dislocation: [139]; the applicant's anti-social or drug-taking peers: [140]; and vocational training and employment: [141]-[148].
23 The Tribunal then considered whether the past was an adequate guide to the future, taking into account changes in the applicant's circumstances, including the impact of the applicant's recent diagnosis of a psychotic illness on the range of services and supports that would be available to him: [149]-[163]; and also whether there were mitigating factors: [167]-[169].