2017189 (Refugee)

[2021] AATA 2020

2017189 (Refugee) [2021] AATA 2020 (1 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2017189

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Brendan Darcy

DATE OF ORAL DECISION:  1 April 2021

DATE OF WRITTEN REASONS:              14 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

CATCHWORDS

REFUGEE – cancellation – protection visa – Pakistan – criminal convictions in Australia – religion – Shia – race – Turi-Bangash tribal background – protection obligations – complementary protection – schizophrenia – homelessness – access to medication and treatments – likelihood of relapse – decision under review set aside

LEGISLATION

Migration Act 1958, ss 36, 46, 48, 116, 117, 127, 140, 195, 197, 198
Migration Regulations 1994, r 2.43

CASES

Wan v MIMA (2001) 107 FCR 133

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 November 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 785 (Temporary Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g)) on the basis that the applicant had committed a number of criminal offences in Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 1 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The applicant was represented in relation to the review by his registered migration agent from [a named agency].

4. At the hearing, the Tribunal made an oral decision to set aside the cancellation and substitute a decision not to cancel the applicant’s Subclass 785 visa, but did not provide oral reasons. The following is a written statement of reasons for the Tribunal’s decision.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(i)(g)). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Background

7. The applicant is male who was born on [date] in Parachinar, the capital of Kurram District in Pakistan’s Khyber Pakhtunkhwa (or KPK) Province.

8. The applicant is a citizen of Pakistan. His marital status, it has been consistently claimed, is that he has never been engaged to marry and has never married of lived in de facto spousal relationship, either in Pakistan or Australia.

9. The applicant arrived in Australia [in] June 2012 as an irregular maritime arrival (IMA). In his protection visa application, the applicant stated they were seeking protection from Pakistan because of their religious adherence (Shia’ Muslim).

10. He was granted a Class XB Subclass 785 visa on 26 April 2018. The visa is set to expire on 26 April 2021.

11. A delegate on behalf of the Minister cancelled the applicant’s Class XB Subclass 785 temporary protection visa under s.116(1)(g) of the Act on 17 November 2020.

12. On 27 November 2020, the applicant validly applied to have the delegate’s cancellation decision reviewed by the Tribunal. The applicant provided a copy of the cancellation decision at the time of the review application.

13. Since cancellation, the applicant has remained in the community without holding a bridging or any other visa.

    Does the ground for cancellation exist?

    s.116(1)(g) - prescribed ground

14. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) was the specific prescribed grounds for this cancellation. It states relevantly:

    Reg 2.43 Grounds for cancellation of visa (Act, s116) JD_243

    (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    (oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

    The particulars of the grounds for cancellation

15. The particulars in the NOICC letter issued under s.117 which are outlined in that notice as well as in the decision record are outlined chronologically below:

16. [In] January 2016, the visa holder was convicted of the following offences at [Court 1]:

    Offence  Result

    Tamper with Motor Vehicle (2 Charges)   With conviction, fined an aggregate of

    Deposit Litter   $500.00
    Intentionally Destroy Property

    Intentionally Destroy Property   With conviction, fined an aggregate of $500.00   

    Pay compensation $500.00

    Aggregate [period] imprisonment

17. [In] February 2019, the visa holder was convicted of the following offences at [Court 2]:

    Offence  Result

    Criminal Damage (Intent Damage/Destroy)                 Aggregate [period] imprisonment

    Concurrent

    Pay compensation $[amount]

    Intentionally Damage Property (3 Charges)                 Aggregate [period] imprisonment
    Commit Indictable Offence Whilst on Bail                    Concurrent
    (3 Charges)
    Discharge Stone to Cause Injury/Danger          

    Criminal Damage (Intent Damage/Destroy)                 Aggregate [period] Imprisonment

    Concurrent

    Pay compensation $[amount]

    [In] October 2019, the visa holder was convicted of the following offence at [Court 2]:

    Offence  Result

    Intentionally Damage Property (3 Charges)                 6 months imprisonment

    Fail to Answer Bail   Concurrent

18. The decision records states that on 25 May 2020, the Department was advised that [in] May 2020, the visa holder was convicted of the following offences at [Court 2]:

    Offence  Result

    Sexual Activity directed at another person                   6 months imprisonment

    Concurrent

    Unlawful Assault   1 month imprisonment

    Concurrent

    Make threats to Kill   6 months imprisonment

    Concurrent

    Make threats to kill   3 months imprisonment

    Concurrent

    Commit Indictable Offence on Bail x2   1 month imprisonment

    Concurrent      

    Intentionally Damage Property   3 months imprisonment

    Concurrent

19. The Department issued a Notice of Intention to Consider Cancellation (NOICC) letter on 2 July 2020 and for the applicant to respond in writing. It informed him that the as the visa holder had been convicted of an offence under a law of the Commonwealth, a State or Territory and is a the holder of temporary visa, it considered the visa holder liable for cancellation under s.116(1)(g) of the Act relying on the prescribed ground at regulation 1.243(1)(oa).

20. The applicant provided a written response on 15 July 2020 which stated that the applicant accepted grounds for cancellation exist and apologised for the offending, including attacking people, including the police. 

21. A delegate on behalf of the Minister cancelled the applicant’s Class XB Subclass 785 temporary protection visa under s.116(1)(g) of the Act on 17 November 2020.

22. On 27 November 2020, the applicant validly applied to have the delegate’s cancellation decision reviewed by the Tribunal.

23. The applicant provided a copy of the cancellation decision at the time of the review application. It is noted that the delegate stated the reasons the grounds for cancellation existed was based on the convictions that occurred [in] January 2016, [February] 2019, [October] 2019 and [May] 2020 for various offences as listed above. The visa holder has been imprisoned for their offences. The decision record also stated that since issuing the NOICC, the visa holder’s convictions remain unchanged.

24. In a written submission provided the applicant’s representative which the Tribunal received on 26 March 2021, it states that ‘we’ accept the grounds for cancellation under s.116(1)(g) on the prescribed grounds at regulation 2.43(1)(oa). It noted the grounds for cancellation only existed because the threshold for cancellation is very low.

25. At the scheduled hearing, the applicant provided oral testimony that he accepted the grounds for cancellation.

26. The Tribunal finds that the review applicant was the holder of a Temporary Protection (subclass 785) visa, and had been convicted of several criminal offences in the state of Victoria. The convictions occurred [in] January 2016, [February] 2019, [October] 2019 and [May] 2020 for various offences as listed above. The visa holder has been imprisoned for their offences.

27. With no evidence or claims to the contrary, the Tribunal finds there are grounds for cancellation of the visa holder’s Temporary Protection (subclass 785) visa under section 116(1)(g) of the Migration Act 1958 relying on the prescribed grounds at regulation 2.43 (1)(oa) of the Migration Regulations 1994.

28. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

29. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

30. Along with a legal submission provided to the Tribunal, accompanying documents and oral evidence provided at the scheduled hearing, the Tribunal has taken into account the visa holder’s response to the Notice of Intention to Consider Cancellation, the relevant legislation the Migration Act 1958 and Migration Regulations 1994, and the guidelines set out in Procedural Instruction General visa cancellation powers (s109, s116, s128, s134B and s140) on visa cancellation.

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

    The review applicant travelled to Australia in 2012 to seek its protection. While he arrived in Australia on a vessel without a visa, he was granted a Subclass 785 protection visa on 26 April 2018 on the basis he was found to be a refugee.

    It is noted that, as a visa holder, the applicant departed Australia [in] June 2019, to travel to [Country 1] (but not his home country) to visit family. Permission to travel was approved by the Department. The visa holder returned to Australia [in] August 2019.

    The available information strongly indicates that the review applicant’s travel to and stay in Australia is aligned with the purpose of his protection visa. Accordingly, the Tribunal places considerable weight against cancelling the visa.

    the extent of compliance with visa conditions

31. There is no evidence before either the Department or the Tribunal to indicate the visa holder has not complied with any other conditions of their visa.

32. Taking into account the above, the Tribunal places some weight on this history of compliance against cancelling the visa.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

33. The review applicant has been residing in Australia since June 2012. He has formed some ties within the Australian community, but he has experienced homelessness and has relied primarily on income support.

34. Further, the applicant is not in a spousal relationship and he does not have any family in Australia.  He is not estranged from his parents and family back in Parachinar and he would have a family to return them and their support. While the applicant would face some challenges finding work, the Tribunal is confident he would be able to. The applicant has limited education and no qualifications or trade skills. The applicant’s family is not wealthy or influential.  

35. In returning to Pakistan, he would be facing a country where affluence is not as widespread as it is in Australia. According to a 2016 United Nations Development Programme report, Pakistan’s poverty index reveals that 4 out of 10 Pakistanis live in multidimensional poverty.[1] The report found that over two-thirds of people in FATA (73 percent) and Balochistan (71 percent) live in multidimensional poverty. Poverty in Khyber Pakhtunkhwa – where the applicant’s family resides - stands at 49 percent, Gilgit-Baltistan and Sindh at 43 percent, Punjab at 31 percent and Azad Jammu and Kashmir at 25 percent. There are severe differences between districts: Islamabad, Lahore and Karachi have less than 10 percent multidimensional poverty.

    [1] Pakistan’s new poverty index reveals that 4 out of 10 Pakistanis live in multidimensional prover, UNDPO website, 20 June 2016, >

    Based on the country information and the applicant’s economic circumstances, the Tribunal accepts some financial hardship towards the applicant would arise should this visa remain cancelled.

36. Psychologically, the applicant will return to Pakistan with a major mental health condition, namely schizophrenia.   Schizophrenia (or SCZ) is a complex neurological disorder that involves impairments in the perception or expression of reality, accompanied by significant social or occupational dysfunction. The symptoms of this disease can be classified into four broad categories: positive symptoms, negative symptoms, cognitive impairment, and other mood disturbances. Such symptoms include hallucinations, delusions, disordered thinking, movement disorders, flat affect, social withdrawal, and cognitive deficits. Patients with schizophrenia may also experience fearfulness, withdrawal, extreme agitation, sleep disturbances, and behavioural changes. Besides, speech content is often bizarre in patients with schizophrenia, who may also sit for hours without moving or talking or exhibit no signs of impairment until they begin speaking about their thoughts. Although it is a common misconception, schizophrenia is not characterized by dissociative identity disorder, where patients exhibit episodic rather than continued dysfunction.

37. During the hearing, the applicant indicated that the treatment he was receiving through anti-psychotic pharmaceuticals would not be available to him in Pakistan. As discussed in the hearing, the country information does not support this. According to an academic paper from Open Journal of Psychiatry, the use of psychotropic drugs is the mainstream of treatment for persons with schizophrenia in Pakistan.[2]  The treatment of schizophrenia has always been a big challenge despite tremendous pharmacologic progress. The antipsychotic drugs are renowned to treat symptoms of schizophrenia and have been helpful in averting relapse of the illness for many years.

    [2] More than Half of Patients with Schizophrenia Are Receiving Polypharmacy and Co-Prescription of Anxiolytics in Pakistan —Findings from Research on Asian Prescription Pattern in 2016, Open Jornal of Psychiatry, Vol 8, No.3 July 2018, >

    The Tribunal does not discount that there are issues with accessibility and affordability of such treatments in Pakistan and that managing the applicant’s chronic condition includes problems with non-compliance with medication and the adequacy of counselling and clinical support. Neither does it discount the applicant faces some risk of stigma, although he has the advantages of being diagnosed and there is treatment available to him in returning to Parachinar, if this visa were to remain cancelled. Overall, the Tribunal assesses the applicant will face a notable degree of psychological hardship in managing his schizophrenia and it places commensurate weight on that hardship should this visa remain cancelled.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.

38. The offending which led to the grounds for cancelling this visa are outlined above.

39. In the applicant’s NOICC response, he stated that he was diagnosed with schizophrenia as little as one year ago and that he had been living with the condition undiagnosed for many years. This, it was argued, was the underlying cause of his offending between January 2016 and May 2020. Furthermore, the applicant claimed to the Department to have a history of medication non-compliance and polysubstance misuse which includes methamphetamine, cannabis and alcohol. The offences the review applicant committed which led to convictions in May 2020 and Oct 2019 were the result of a schizophrenic episode and he has very little recollection of the offences that were committed in January 2016 and February 2019 as he was homeless at the time and not receiving treatment for schizophrenia.

40. The Tribunal notes that the delegate accepted that the visa holder’s offences may have been caused by schizophrenic episodes.  The Tribunal concurs with the applicant and the delegate that schizophrenia has been an underlying cause of his offending and that the offending has progressively escalated to the point he committed a sexually based offence and a threat to kill for which he was convicted in May 2020.   

41. Overall, the circumstances in which the cancellation arose had an extenuating psychiatric condition for which the applicant had not been diagnosed and treated. The Tribunal accepts that the applicant’s schizophrenia was not under his control in the absence of such a diagnosis and places considerable weight on this in favour of having the protection visa being reinstated. 

    past and present behaviour of the visa holder towards the department

42. There is no information before either the Department or the Tribunal to indicate the review applicant has been uncooperative with the Department in the past, and he is currently being co-operative in relation to the cancellation consideration matter. As a visa holder, the review applicant also responded to the NOICC within the prescribed timeframe. During the hearing, the applicant was respectful and polite.

43. The Tribunal places some weight on this behaviour, cumulatively considered, against the visa remaining cancelled.

    whether there would be consequential cancellations under s.140

44. The review applicant does not have any dependants. Therefore, this visa cancellation would not result in any consequential cancellations. The Tribunal does not place any weight for or against a decision to have the visa remain cancelled.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

1. On 26 April 2018, the review applicant was granted a temporary protection visa, and the Tribunal accept that he must be treated as a person in respect of whom Australia has non-refoulement obligations, subject to any reassessment of their protection status. He currently holds no visa but is in the community.

2. Should the review applicant’s temporary protection visa be cancelled, he will be subject to sections 46A and 48A of the Act which means that he will not be able to apply for another visa whilst in Australia, including a protection visa, unless the Minister lifts the relevant bars using his personal non-compellable powers under s46A(2) and s48B(1), respectively.

3. Additionally, if this temporary protection visa remains cancelled, the review applicant will become an unlawful non-citizen and will be liable for immigration detention under s.189 and removal under s.198 of the Act. Given the 2018 assessment to be a temporary protection visa holder, the Tribunal is also aware that s.197C of the Act provides that for the purposes of s.198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

4. The Tribunal is mindful that even if this visa remains cancelled, the Minister has a personal non-compellable power in s.195A of the Act to grant a visa to them if he or she thinks it is in the public interest to do so. The Tribunal is also mindful that if the Minister does not consider exercising that power, or does not exercise it in the applicant’s favour, the applicant will be liable to removal as soon as reasonably practicable in accordance with s198 of the Act, including to Pakistan, having regard to s.197C.

5. The applicant will also be subject to Public Interest Criterion 4013 for three years, if the visa is cancelled.

6. Taking into account the above, the Tribunal gives these considerations about the legal consequences notable weight against cancelling the visa.

   whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

   Non-refoulment obligations under s.36(2)(a): race and/or ethnicity

7. There is no suggestion that the applicant is not a Shia Muslim from Parachinar, the capital of Kurram District in the Khyber Pakhtunkhwa (or KPK) Province and that he was from a Turi-Bangash ethnic or tribal background. Neither is there is any suggestion that the applicant does not have a subjectively held fear of persecution based on the determination of Sunni Muslims extremists, such as the Taleban in Pakistan, to target Shia Muslims.  The applicant’s subjective fear was compounded by a fear of being cajoled into directly fighting Sunni militants by Shia militia in Parachinar.

8. With the objective side of that assessment of the applicant’s well-founded fear of persecution, the Tribunal notes that applicant was granted a protection visa based on the same nexus reasons.

9. During the hearing, the Tribunal discussed with the applicant the Department of Foreign Affairs and Trade (DFAT) country information on Pakistan from February 2019. This report indicated that the security situation throughout Pakistan had improved because the authorities had been more effective in tackling Sunni militants. This includes the Pakistani military provides escort services for Shi’a pilgrims to protect them from attacks, significantly mitigating the risk of violence. Military escorts can be infrequent. DFAT assesses that Shi’a pilgrims travelling by road to Iran through Balochistan without military escort face a moderate risk of violence from sectarian militants. Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups. High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted. The DFAT information also indicated that the risk of violence in Parachinar for Shia Muslims was low.

10. The Tribunal notes that the applicant’s parents continue to reside in Parachinar and have not relocated within Pakistan or have been externally displaced outside Pakistan. In the context of the country information about the improved security situation for Shia Muslims in Pakistan, this strongly indicated to the Tribunal that the applicant’s chances of serious harm based on his religion and/or his ethnicity to be remote and insubstantial, if he were to return to his home area of Parachinar or Pakistan more generally.

11. While the Tribunal does not assess the applicant’s circumstances meets having a well-founded fear of persecution based on his ethnicity and religion, objectively understood, it still places a notable amount of weight on these fears for the claimed the reasons in favour of the visas being reinstated.

    Non-refoulment obligations under s.36(2)(a): mental health condition

12. It has also been claimed that the applicant has a well-founded fear of persecution based on the applicant being inflicted with schizophrenia and the social stigma attached to it, should he be returned to Pakistan.

13. As discussed in the in the hearing, the gap in the quality, accessibility and affordability of mental health treatments in Pakistan is significant compared to Australia. It does not accept access is non-existent. There are clearly available services in Pakistan, especially in that country’s metropolises such as Karachi and Lahore. While stigma against mental health conditions is prevalent in Pakistan, some country information reports that the importance of mental health is becoming recognized in Pakistan. Specifically, in Hyderabad the importance of mental hospitals is understood as many people are aware that mental health is important for a person's overall physical health. Mental hospitals in Hyderabad deal with the treatment of serious psychiatric diseases such as schizophrenia, clinical depression and bipolar disorder. In other areas, such as Karachi, there are several large private hospitals that provide mental health services. These include the Aga Khan University Hospital (AKUH), which has a psychiatric ward for mental health patients. The AKUH has a psychiatry department which includes six full-time psychiatrists and two full-time psychologists, in addition to two part-time psychiatrists and one part-time psychologist

14. Several non-governmental organisations (NGOs) are actively providing care to mentally ill patients at subsidised rates or no cost at all. The Pakistan Association for Mental Health (PAMH), established in 1966, set up a free depot line clinic in 2002 in Karachi, offering free of cost outpatient services, such as psychiatric consultation, psychotherapy and psychological assessment. Services are limited due to the number of psychiatrists and psychotherapists that are available.

15. Karwan-e-Hayat has a 100-bed inpatient hospital in Keamari, Karachi, which also has an outpatient department (OPD), pharmacy, rehabilitation services department and a separate ward for male and female patients, and a community psychiatry centre in Korangi, Karachi, which has an OPD, pharmacy and rehabilitation centre. They also run the Jami Clinic in Punjab Colony, Karachi, which includes an OPD and pharmacy. The NGO has been providing consultation, medicines, meals and rehabilitation services free of cost or at subsidised rates to more than 350,000 under-privileged mentally ill patients since 1983.

16. Furthermore, the access to anti-psychotics in Pakistan, including the kinds from which the applicant has benefited in recent months will not be denied to the applicant. The applicant is not a poor responder to such treatments. If returned to Pakistan, the applicant has the benefit of having a diagnosis and the knowledge of which treatments have been effective while under clinical supervision.

17. Similarly, the Tribunal  finds that the applicant would not be denied any services for the essential and significant reasons that he has a serious mental health condition or even in considering the combination of his race and ethnicity and his mental health condition, if he were to return to Pakistan. The country information is clear that services do exist, albeit from a low base compared to Australia.

18. There is no compelling reason whereby the applicant would forgo psychiatric and pharmaceuticals in favour of religious healing therapies on an exclusive basis. Neither does the Tribunal accept the applicant, if treated, would encounter social stigma so widespread or severe that it would amount to him experiencing a real chance of serious harm.

19. Moreover, as the applicant’s mental health condition, which involves schizophrenia, the applicant does not have a real chance of serious harm for a nexus reason listed under paragraph 5J(1)(a), because the Tribunal does not accept the applicant’s schizophrenia amounts to having a membership of a particular social group.

    Non-refoulment obligations under s.36(2)(aa): mental health condition

20. In the circumstances where a Pakistani national with a mental health condition seeks not to be returned to his or her country of origin, such facts do not necessary or ordinarily trigger Australia’s complementary protection obligations.

21. In relation to the applicant’s fear of psychological or psychiatric deterioration, whilst there is such a risk of that deterioration, and that it may be severe, the information and evidence before me does not suggest that any severe deterioration in his mental health would be inflicted on the applicant by any person or group. Section 5(1) of the act provides definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. In each case, the elements of the definitions require an act or omission by which severe pain, pain or suffering or extreme humiliation is intentionally inflicted on the person. In the applicant's case, deterioration of his psychiatric condition may arise due to the change in his environment and any potential lapse in treatment, but the applicant's evidence does not suggest intentional infliction of such (nor indeed, the intentional withholding of treatment for any reason by any person). The Tribunal considers that the possible deterioration in the applicant's mental health, in itself, does not meet the necessary criteria within the definitions of 'significant harm' outlined in s.5(1) for each of 'torture', 'cruel or inhuman treatment or punishment' or 'degrading treatment or punishment.' That harm would not be 'inflicted' or 'caused' by any act or omission of any person which intended to cause that harm.

22. The Tribunal nonetheless does have substantial reasons for believing that the applicant has a real risk of significant harm whereby he will return to Pakistan and that his mental health condition will deteriorate because for a range of reasons, not least, inconsistent and irregular medical treatment by himself and/or the mental health system. 

23. In this matter, the applicant’s schizophrenia has involved violent outbursts in the public that has attracted the attention of local police in Australia.

24. Studies in Pakistan show non-compliance with drug treatments with anti-psychotics is common. According to research published in Heliyon in November 2020,  the most common reasons for non-compliance include a lack of awareness regarding the benefits of treatment, an inability to afford the drugs, physical side effects, a lack of awareness among doctors, and the stigma surrounding mental health disorders and treatment. In Pakistan, drug non-compliance has been a major hindrance to the effective management of SCZ.  Nearly 74% of patients experience a relapse of the illness and require frequent readmission due to non-compliance. [3]

    [3] Overview of schizophrenia research and treatment in Pakistan, by Rukhsana Nawaz et al, Heliyon, Volume 6, Issue 11, November 2020, >

    What has troubled the Tribunal is whether there is a real risk of the applicant suffering significant harm in the event of the applicant is the likelihood of a relapse of his illness due to non-compliance and/or poor outpatient support and the likely consequences following on from that.

25. Given the information that Pakistani schizophrenia patients experience relapses whereby psychotic episodes are played out in high numbers and noting that the applicant’s offending in Australia has led to being held in custody and imprisonment, the Tribunal finds that there is a real risk of the applicant coming to the attention of the authorities in Pakistan arising from pharmaceutical non-compliance and by offending. In such a likely event, the Tribunal assesses the applicant will be detained by the authorities.

26. The Tribunal is also aware that Pakistan has executed people who were under 18 at the time their crime was committed and people suffering from mental illness. However, according to Human Rights Watch, a prisoner with schizophrenia, due to be executed in November 2017, had their execution suspended by court order while a medical board was ordered to assess his mental health, and in April 2018, the Supreme Court also reviewed the death sentences of two other prisoners with psychosocial disabilities on death row. Pakistan has yet to pass legislation criminalizing the torture or providing for punishments for the perpetrators of torture. Although this information does not lead the Tribunal to conclude the applicant has a real chance of being placed on death row or being tortured, it does demonstrate to it that Pakistan has not yet eliminated legal safeguards against a range of abuses towards those held in custody, especially those with serious mental health conditions.

27. DAFT also reports that conditions in adult detention and prison facilities in Pakistan do not meet international standards due to under-resourcing, overcrowding and poor sanitary conditions. The US State Department has described the conditions in some prisons as ‘harsh and life threatening’ due to ‘overcrowding and inadequate medical care’. Sources report all prisons in Pakistan, except some in Balochistan, are overcrowded. The US State Department reported in 2016 that more than 100,000 people were in detention facilities with a combined capacity of around 36,000. DFAT understands 12 to 15 people often occupy a 6x8 metre to 6x10 metre cell designed for three people, and that each cell generally contains one open toilet, which is cleaned once every 24 hours.  While DFAT understands prison conditions have improved over the last decade, hygiene and family meetings remain inadequate.

28. The applicant mentioned his fears that he feared the authorities would ask for bribes from his family to have him released. These fears do not appear to be exaggerated. Police are poorly paid and face poor working conditions, high personal security risks, and decreasing resources. Individual police officers often augment their salaries with bribes. In some provinces, police claim stations operate 24 hours a day, often with only eight to 16 staff per station. Police and government officers are often targeted for attack and militant groups often explicitly target police. This has a significant disruptive impact physically, mentally, and on resources and agency focus. Pashtuns migrating within Pakistan, particularly to Karachi and Lahore, also report ethnic profiling and harassment by security officials, including demands for bribes as high as PKR 500,000 (AUD 5,500) on the threat of being listed as a terrorist.

29. The ill-treatment of suspects in police custody is a widespread problem throughout Pakistan. Human Rights Watch states:

    Human Rights Watch discovered that such practices include custodial beatings, by hand or with batons and littars (strips of leather), the stretching and crushing of detainees’ legs with roola (metal rods), sexual violence, prolonged sleep deprivation, and mental torture, including forcing detainees to witness the torture of others. Custodial deaths resulting from torture are not uncommon. Former detainees often reported long-lasting effects including physical pain, disability, and mental stress.[4]

    [4] ‘This Crooked System” Police Abuse and Reform in Pakistan, HRW, 26 September 2016, >

    The Tribunal does not have any confidence that the applicant will not have real risk of cruel and inhuman practices due to the widespread abuses practiced by Pakistani authorities, should he be detained following a psychotic episode, which will bring the applicant to their attention because of his erratic and threatening behaviour. This includes a real risk of the applicant being denied proper medical and psychosocial care as a sufferer of schizophrenia while in police custody or imprisonment. It accepts that corruption, poor training and poorly remunerated law enforcement systems throughout Pakistan, often described as ‘thana culture’ (after the Urdu word for police station) will lead to a real risk of  the applicant’s family being extorted to have him better treated or released. It accepts that any medium to long term custody or sentence of the applicant will lead to a real risk of cruel and inhuman treatment or punishment due to the substandard conditions and poor health access that mental health suffers held in such custody endure.

30. Based on the applicant’s psychiatric condition and the country information raised, there are numerous grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of his returning to Pakistan. Accordingly, the Tribunal places significant weight in its assessment regarding complementary protection provisions in favour of the visa not remaining cancelled.

31. In this matter, the Convention on Rights of the Child is not relevant or applicable.  

32. Overall, the Tribunal assesses that the applicant’s visa had been granted because the applicant had been owed Australia’s protection obligations as recently as 2018. It was granted on the basis of the applicant having a well-founded fear of persecution based on religion, as a Shia Muslim, if returned to Pakistan. The Tribunal places notable weight on this in favour of the visa being reinstated. Moreover, it places significant weight on the likelihood that the applicant has a real risk of significant harm arising from a psychotic episode leading to him be detained in such a manner that it will lead to him being subjected to cruel and inhuman treatment or punishment.

33. When cumulatively considering the risk of non-refoulment to the applicant if this visa remains cancelled, it places significant weight on this protection visa under review being reinstated.

    if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

34. Not applicable

    any other relevant matters

    Information subject to a non-disclosure certificate validity

35. The Tribunal is satisfied the non-disclosure certificate attached to the matter had been validly issued. It does not accept the arguments advanced by the applicant’s representative that they have been invalidly issued. The Tribunal employed its discretion to provide the applicant suitable time to consider the adverse information contained in the redacted copies of the information subject to the non-disclosure certificate. 

36. The applicant’s representative has argued that redacted material regarding a pending change of sex assault by touch under 16 indicating the applicant ‘had kissed a toddler on the lips without the parent’s consent’ could not have any consideration in this review. They provided a copy of a court order indicating the matter had not been fully determined by a criminal court. The submission from the applicant’s representative also mentions that the redacted material relates to information yet to be finally determined by a court and that the review applicant is yet to enter into any pleas in this matter. The Tribunal should, it argues, have no regard to the material relating to outstanding charges and that the constable who raised the allegations was providing commentary to result in the applicant’s deportation and that his emailed commentary had not been consistent with specific professional standards.  The Tribunal concurs with the applicant’s representative that it would be erring in placing any probative value on this information as evidence of criminal offending. However, making such a finding does not detract from the escalation of offending based on the applicant’s convictions alone. The Department, as the representative has pointed out in the submission, did not rely on it when it issued the NOICC or making its cancellation decision. In that regard, the Tribunal has followed the Department’s example in this matter.

    Seriousness of the offending

1. The applicant has a number of criminal offences against property over four separate incidents. The more recent offending appears to have an escalating feature in seriousness. The applicant has endured around one year of imprisonment for those matters. His offending is liable to trigger an assessment on character grounds should he be granted any further visa.  

2. Schizophrenia is a complex disease which can express itself with anti-social violence, as it has in this case.  In the last year or so, the applicant has been diagnosed and treated for schizophrenia which appear, along with substance abuse and homelessness. He has not committed any offences since treatment. On the basis of his ongoing treatment with anti-psychotics, the applicant does not appear to be an imminent risk to the safety to the Australian community.

3. The applicant’s multiple offending, while serious, has mitigating or underlying causes arising from his schizophrenia. It appears the multiple offending may have been avoided had the Victoria Police, the State’s correctional facilities or some other entity had earlier identified and treated the applicant’s serious mental health condition.

4. These circumstances invite the Tribunal to assess that the responsibility and therefore the seriousness of the applicant’s offending was somewhat diminished. Accordingly, the Tribunal only places some, but not a notable or considerable amount of weight, on the seriousness of the offending towards the visa remaining cancelled.

   Conclusion

5. The Tribunal has decided that the grounds for cancellation of this visa under s.116(1)(g) relying on the prescribed grounds at r.2.43(1)(oa) was made out and that the particulars described in the notice given under s.127 of the Act.

6. The Tribunal has carefully considered the material before it independently and cumulatively. The consideration is a question of balance and proportion. The grounds for cancellation involve multiple offences and the escalating seriousness has not been overlooked.

7. There are credible reasons for believing that the applicant’s diagnosed schizophrenia, now treated and stabilised, had been the underlying reasons for his offending.

8. There are aspects in favour of the applicant, mostly relating to the fact that the applicant has been granted a protection visa, albeit a temporary one. The security situation in the applicant’s country of reference has notably improved since he departed. The Tribunal would not be satisfied that the applicant has a real chance of serious harm based on his Shi’a religion in the face of reduced Sunni extremism. However, that does not mean Australia’s international obligations are not enlivened under the Act’s complementary protection provisions. There appears to be a real risk of the applicant being subjected to cruel and inhuman treatment or punishment arising from the applicant’s schizophrenia for the reasons outlined above.

9. The Tribunal is also mindful that this temporary protection visa under review is about to be expire and the applicant has an opportunity to reapply for Australia’s protection obligations under s.36(1A) in an exhaustive manner, including for any health or character assessments.  

10. On balance, the Tribunal is satisfied that the international obligations, the hardship of  the applicant, and other matters as discussed above do outweigh the matters in favour of cancellation.

11. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.