2107042 (Refugee)

[2022] AATA 572

2107042 (Refugee) [2022] AATA 572 (21 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107042

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Alison Murphy

DATE:21 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.

Statement made on 21 February 2022 at 9:57am

CATCHWORDS

REFUGEE – cancellation – protection visa – Sri Lanka – risk to the health, safety or good order of the Australian community – applicant convicted of an offence – protection obligations – compelling need to remain in Australia – chronic mental illness – homelessness – non-refoulement obligations – indefinite detention – community support – decision under review set aside

LEGISLATION

Mental Health Act (Vic)
Migration Act 1958, ss 35, 48, 116, 119, 140, 189, 195, 197, 198
Migration Regulations 1994, r 2.43
Sentencing Act 1991 (Vic), s 76
Sex Offender Registration Act 2004 (Vic)

CASES

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 June 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa (the SHEV) 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 a prescribed ground for cancelling the visa applies to the applicant. The prescribed ground in this case is that set out in r 2.43(1)(oa), being that the Minister is satisfied the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory. 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 15 December 2021. At that time the applicant had not had access to the Departmental file under FOI laws and the hearing was adjourned to 4 February 2022. The Tribunal also received oral evidence from the witness, [Witness A variant 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

   BACKGROUND

5. The applicant is [an age]-year-old Sri Lankan national who arrived in Australia [in] November 2012 as an irregular maritime arrival. On arrival in Australia he was taken to Christmas Island and later [a named] Immigration Detention Centre. He was released into the Australian community in 2013 and remained on a series of bridging visas until he was granted the SHEV on 20 June 2018.

6. On 7 January 2020 the Department sent the applicant a Notice of Intention to Consider Cancellation of the SHEV (the s 119 notice). That notice set out that the Department had received information indicating that the applicant had been convicted of sexual assault and sexual activity directed at another person at [Court 1] [in] December 2019. It asserted that he had been sentenced to [term] imprisonment and was required to report to Victoria Police for a period of [period] under the Sex Offender Registration Act 2004. The notice invited the applicant to comment on that information and give reasons why his visa should not be cancelled.

7. The applicant responded to the notice on 21 January 2020 with the assistance of a social worker from [a unit of Hospital 1] where he was an inpatient. In summary he stated that he feared for his safety if he had to return to Sri Lanka, fearing that he would be imprisoned due to his [Relative A’s] membership of the Liberation Tigers of Tamil Eelam (LTTE). He had to escape his country eight years ago as the government was searching for him even though he had done nothing wrong. The applicant acknowledged breaking the law in Australia but said he had paid his debt by being in prison and would not do anything like that again. He said that in the past he had been on drugs and had ongoing mental health issues that he believed had now resolved. He stated that he was engaging in drug and alcohol support as well as English lessons and would be linked in with mental health support and keep taking his medication in order to be a productive member of Australia. He stated that he sent money to his parents and sisters in Sri Lanka whenever he could and if he had to leave Australia it would negatively affect his family. The applicant stated that he wished to stay in Australia so he could work as [one of two specified occupations] to support himself and his family and to move forward with his life in Australia.

8. The applicant’s response was accompanied by a supporting letter from [Psychiatrist A], consultant psychiatrist at [a unit of Hospital 1]. [Psychiatrist A] stated that the applicant had been admitted under his care during the current admission and also the previous year. He noted the applicant had been diagnosed with schizophrenia in 2016 and had several admissions to various psychiatric units due to a relapse of that illness. He stated that the applicant is socially isolated with a significant trauma background and that his forensic history had been largely related to periods of intoxication and unstable mental health as a consequence of non-adherence and inadequate treatment. [Psychiatrist A] stated that it was his opinion that the applicant maintains a stable mental state and does not pose a risk to himself or others when abstinent and on regular medications. He noted he would likely experience significant deterioration in his mental state when exposed to the further traumatisation of incarceration or detention.

9. The applicant also submitted a letter addressed to him from [Agency 1] dated 14 October 2016. That letter confirmed [Agency 1] appeared for him in relation to [number] charges of interfering with a motor vehicle and one charge of failing to answer bail at [a location] [in] October 2016. [Agency 1] advised that it had pleaded guilty on his behalf to all [the] charges and discussed with the court the applicant’s current mental health, his time as an involuntary patient at [Hospital 2] and his current involuntary status under the Mental Health Act (Vic). The magistrate found all [the] charges proven but dismissed them under s 76 of the Sentencing Act 1991 (Vic) and recorded no penalty.

10. On 11 June 2020, the delegate decided to cancel the applicant’s SHEV, finding the ground for cancellation was made out. In concluding that the visa should be cancelled, the delegate noted that he had resided in Australia for over nine years, that he had a history of trauma and had been diagnosed with schizophrenia. The delegate also had regard to the applicant’s status as a person towards which Australia has protection obligations.

11. The delegate considered that the court outcome from December 2019 indicated the applicant was held by the court to be accountable for his offending which was serious and of a sexual nature and was given a custodial sentence as well as reporting obligations as a registered sex offender. The delegate stated that she held concerns that the visa holder may again offend in a similar vein and potentially place others at risk and had therefore decided to cancel the visa.

12. As a consequence of the cancellation of the visa, the applicant was taken into immigration detention after being located by Victoria Police in July 2020.

    NON-DISCLOSURE CERTIFICATES

13. The delegate has placed three non-disclosure certificates on parts of the Departmental file.

14. A certificate dated 10 June 2021 was made pursuant to s 375A in respect of five documents on the Department’s cancellation file. The certificate identifies the documents by number and description and relates to enquiries the Department has made about the applicant with Victoria Police, Centrelink and Services Australia. That certificate is invalid as s 375A relates to reviews under Part 5 of the Act which is not applicable to the current review.

15. The Department issued further certificates under s 438 of the Act, each dated 24 November 2021 and relating to the same documents identified in the s 375A certificate. The first of those certificates states that disclosure of the certificated documents would be contrary to the public interest as it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. The second states that disclosure of the certificated documents would be contrary to the public interest because it would disclose information provided in confidence where no consent had been given for the disclosure.

16. Each of those certificates was provided to the applicant’s representative who has raised no issues as to their validity.

17. I accept the certificates to be valid on their face. I note the substance of the information certified and provided by Victoria Police has already been disclosed to the applicant in the notice and the delegate’s decision and is referred to in the applicant’s submissions.

18. 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(1)(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.

    Does the ground for cancellation exist?

    Section 116(1)(g) - prescribed ground

19. 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 reg 2.43 of the Migration Regulations 1994. In the present case, the ground in reg 2.43(1)(oa) is relevant:

    (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)).

20. The Notice of Intention to Consider Cancellation of the applicant’s visa given to him under s 119 of the Act (and replicated in the delegate’s decision provided to the Tribunal by the applicant) alleges that [in] December 2019, the applicant was convicted of sexual assault and direct sexual activity at a person. He was sentenced to an aggregate period of [term] imprisonment and ordered to report to Victoria Police for a period of [period].

21. Although not included in the s 119 notice, it is relevant to the note the applicant’s other criminal offending as set out in the [Agency 1] correspondence and legal documents provided to the department and the Tribunal by the applicant:

    ·[In] October 2016, the applicant was convicted of [number] offences of interfering with a motor vehicle and failing to answer bail. Correspondence from [Agency 1] indicates they appeared for the applicant in court, entering a plea of guilty to all of the [charges]. [Agency 1] made submissions as to the applicant’s mental health and his status as an involuntary patient subject to an order under the Mental Health Act 2014 (Vic) and the magistrate found all charges proven, but dismissed them under s 76 of the Sentencing Act and recorded no penalty against the applicant;

    ·[In] July 2020 the applicant was convicted of failing to report to police within seven days of release from custody; failing to comply with his reporting obligations and committing an indictable offence while on bail. He was fined an aggregate $500 for these offences.

22. There is no dispute that the applicant has been convicted of the 2019 offences specified in the notice and the 2016 and 2020 offences outlined in the paragraph above and the Tribunal finds accordingly. As the applicant is the holder of a temporary visa (other than a bridging visa or a special category visa) and he has been convicted of offences against the laws of the State of Victoria, the prescribed ground applies to the applicant.

23. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. 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

24. As the Tribunal has decided that the prescribed ground for cancelling the visa applies to the applicant, it is necessary to consider whether the visa should be cancelled pursuant to

    
    

    s 116(1)(g). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 116.

25. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 119 notice about the non-compliance and have regard to any prescribed circumstances. Currently there are no prescribed matters to which a decision maker must have regard in considering whether to cancel a visa under s 116, but the Department’s policy guidelines ‘General Visa Cancellation Powers (s 109, s 116, s 128, s 134B and s 140)’ provides a list of the matters that should be considered.

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

26. The applicant travelled to Australia by boat in November 2012 where he sought Australia’s protection. An officer of the Department subsequently assessed him to be a refugee and he was granted the SHEV on 20 June 2018.

27. While the protection finding does not appear to be subject to a formal written decision record, case notes dated 27 April 2018 indicate that a Departmental delegate assessed there to be a real chance the applicant would be questioned by Sri Lankan security forces on his return to Sri Lanka for reasons of his Tamil ethnicity and imputed political opinion. In reaching that conclusion the delegate accepted the applicant is a vulnerable young Tamil man from Jaffna district who was arrested and badly beaten after the Sri Lankan authorities found two pistols in his [Relative A’s] [business 1].

28. The delegate also accepted that the applicant suffered from a severe mental illness (schizophrenia) and cannabis abuse. The officer cited country information indicating that mental health services in Sri Lanka are scarce and there is a general institutional incapacity to respond to mental health care needs; that there were no services at all in the applicant’s home area in Northern Province; that there was a high risk the applicant would not be able to access his anti-psychotic medication or the assertive medical treatment he requires to comply with his treatment regime and that consequently there was a high likelihood that if he were returned to Sri Lanka his mental health would deteriorate.

29. The delegate cited country information indicating that the Sri Lankan security agencies engage in torture and considered the applicant’s medical condition, characterised by psychotic episodes involving hallucinations and aggressive behaviour, put him at risk of torture during detention and questioning by the Sri Lankan authorities.

30. The Tribunal accepts that the applicant is a person to whom Australia has protection obligations and for that reason he has a compelling need to remain in Australia. I consider this factor weighs significantly against the cancellation of the visa.

    The circumstances in which the ground for cancellation arose

31. The ground for cancellation arose when the applicant was convicted of sexual assault and sexual activity directed at another person at the [Court 1] [in] December 2019, the offending itself having occurred [in] May 2019. The applicant was sentenced to [term] imprisonment and required to report to Victoria Police for a period of [period] under the Sex Offender Registration Act 2004.

32. As noted above, the applicant was also convicted of [number] counts of interfering with a motor vehicle and failing to answer bail in October 2016 and failing to report to police within seven days of release from custody; failing to comply with his reporting obligations and committing an indictable offence while on bail [in] July 2020. A case note dated 20 June 2018 indicates the Department considered the 2016 convictions before granting him the SHEV, concluding that those offences did not amount to a serious crime and the applicant therefore met the character test. The July 2020 offending took place shortly after the applicant’s visa was cancelled.

33. It is apparent that the applicant’s criminal offending has occurred against a backdrop of mental illness and homelessness. The medical evidence indicates the applicant was first diagnosed with schizophrenia in 2016 and had multiple hospital admissions in 2016. At the time of the applicant’s convictions in October 2016, he was the subject of an inpatient treatment order under the Mental Health Act 2014 (Vic), having been admitted to hospital shortly after the offences occurred. Correspondence from [Agency 1] who represented him in those court proceedings indicates that after hearing submissions about the applicant’s medical conditions and status as an involuntary patient the magistrate found the charges proven but dismissed them under s 76 of the Sentencing Act (Vic) and recorded no penalty against the applicant.

34. After the 2016 charges were dealt with and the applicant was discharged from hospital, the applicant’s mental health case manager assisted him to travel to Sydney. In Sydney he was collected from the airport by [Witness A], whose wife was a friend of the applicant’s mother’s family in Sri Lanka. [Witness A] brought the applicant to live at his home and the applicant lived with [Witness A] and his family for somewhere between one and two years, becoming close to [Witness A] and his wife and children.

35. Sometime in 2018 the applicant left [Witness A’s] home to stay with a friend called [Friend A] who lived in [Suburb 1] and owned a [business 1] at which the applicant sometimes worked. The applicant left NSW for Melbourne in early 2019 after an altercation with another person at the [business 1] where he worked with [Friend A]. In Melbourne he stayed with a friend for a few days before leaving and self-ceasing his medication. He was trying to return to Sydney when his luggage and phone were stolen at [a location] and he became homeless for several months.

36. The material before the Tribunal indicates that the applicant was homeless and experiencing a relapse of his schizophrenia at the time of his criminal offending in May 2019, the sentencing in December 2019 and the visa cancellation in June 2020 as follows:

    ·The police charge sheet records that at the time that offending took place [in] May 2019, the applicant was homeless;

    ·At the time the s 119 notice was given in January 2020, the applicant was serving his sentence in prison. A social worker from the prison’s psychiatric unit corresponded with the delegate on the applicant’s behalf, asking for further time to respond to the notice and seeking information as to whether he would be collected from prison by immigration officials. The social worker indicated that in the absence of other arrangements, the applicant would be released from prison homeless with no fixed address;

    ·Later correspondence from that social worker to the delegate advised the applicant’s mental health had deteriorated and it was the opinion of his treating team that he did not have the capacity to provide a meaningful response to the s 119 notice. The social worker advised that it was planned to release the applicant on prison on an interim assessment order (under the Mental Health Act 2014 (Vic)) and escort him to a mental health facility for assessment and likely admission. [Psychiatrist B], Consultant Forensic Psychiatrist at [a named] Correction Centre where the applicant was imprisoned, wrote to the delegate on 14 January 2020 to advise that the applicant did not have the capacity to understand the issues relating to his immigration status;

    ·[In] January 2020 the applicant was released from prison into the care of [a unit of Hospital 1]. On 21 January 2020, a social worker from [a unit of Hospital 1] wrote to the delegate advising that the applicant was being released from hospital into crisis accommodation through [Agency 2], there being no other accommodation options available to him;

    ·By the time the visa was cancelled on 11 May 2020, the applicant was again homeless and the Notification of Cancellation and Record of Decision to Cancel the visa was served on him in person by Victoria Police.

1. There is less information about the July 2020 convictions before the Tribunal, those convictions occurring shortly after the visa was cancelled. A charge sheet provided to the Tribunal by the applicant records that he was of no fixed abode at the time and that the committed indictable offence while on bail related to his possession of cannabis.

2. While the chronology is not completely clear, ICSE records indicate the applicant was taken into immigration detention [in] July 2020 and then almost immediately transferred to hospital. International Health and Medical Services (IHMS) records indicate that [in] July 2020, the applicant was in [Hospital 2] with a relapse of schizophrenia. On that date he was assessed as being at high risk of self-harm due to a deterioration in his mental state and at low risk of harm to others. At some point after that he was transferred back to immigration detention where he was reviewed by a psychiatrist [in] August 2020 who records that his schizophrenia was in remission following his commencement on medication.

   The degree of hardship that may be caused; the mandatory legal consequences to the cancellation decision and Australia’s international obligations

3. In this case the degree of hardship that may be caused by the visa cancellation is directly related to the mandatory legal consequences that will follow, the applicant’s status as a person in respect of whom there is a protection finding and Australia’s international obligations. For the following reasons, the Tribunal has concluded that cancelling the visa is likely to result in the applicant being indefinitely detained with no apparent avenue to regularise his immigration status or depart Australia unless he elects to voluntarily return to Sri Lanka where he faces a well-founded fear of persecution.

4. If the applicant’s SHEV remains cancelled, he will be unable to make a further application for a protection visa without the Minister’s intervention.[1] Section 48 further limits the kinds of visas for which persons in the applicant’s position can apply and there is no obvious substantive visa available to the applicant while he is onshore. While s 48 of the Act theoretically allows the applicant to make an application for a partner visa, he is not in a relationship with an Australian citizen or permanent resident that would make him eligible for that visa.

   [1] Sections 48A and 48B of the Act

5. The applicant was taken into immigration detention [in] July 2020 where he remains. In the absence of the grant of another visa, the applicant will continue to be an unlawful non-citizen liable subject to detention under s 189 of the Act. Section 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal and
   s 198(5) requires that an unlawful non-citizen who is a detainee must be removed as soon as reasonably practicable.

6. However in this case the applicant cannot be removed from Australia because he is the subject of a protection finding for the purposes of s 197C(3). This arises because he made a valid application for a protection visa on 22 December 2016 (noting that the SHEV is one of the class of visas which are protection visas as set out in s 35A(3A)) and that application was finally determined when a delegate made a ‘protection finding’ in respect of the applicant’s SHEV application on or about 27 April 2018 as evidenced by the Departmental case notes referred to above.

7. In these circumstances s 197C(3) does not require or authorise the applicant’s removal from Australia unless the decision finding that he engages Australia’s protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D(2) and that decision is complete within the meaning of s 197D(6), or the non‑citizen requests removal. As none of these circumstances presently apply, the existing protection finding will ensure that the applicant is not removed in breach of those obligations unless and until the Minister makes a determination under s 197D(2) or the applicant requests removal to Sri Lanka.

8. A detainee may apply for a visa after being detained under s 195 of the Act and the Minister may grant a visa under s 195A if he or she thinks it is in the public interest to do so. Such a decision is not reviewable or compellable and would appear unlikely in circumstances where the applicant’s visa has been cancelled in the circumstances that arise in this case. The Tribunal notes that the applicant has already applied for a bridging visa that was refused on character grounds.

9. The consequence for the applicant is that he is liable to be indefinitely detained with no realistic avenue to regularise his immigration status or depart Australia unless he elects to voluntarily return to Sri Lanka where he faces a well-founded fear of persecution.

10. Ongoing detention will cause significant hardship to the applicant, who lives with a serious and chronic mental illness. In the opinion of [Psychiatrist A], the consultant psychiatrist at [a unit of Hospital 1] who treated the applicant immediately prior to his being taken into immigration detention, it is very likely that the applicant’s detention will be traumatising and result in a significant deterioration in his mental state. There is also a significant amount of psychiatric research on the impact of immigration detention on mental health which concludes that asylum seekers and refugees detained in immigration detention consistently demonstrate severe mental health consequences and detention related harm. In particular the Royal Australian and New Zealand College of Psychiatrists identifies people with mental illnesses as a group that should not be detained in immigration detention, noting that harm to well-being accumulates during detention with the risk of worsening mental health increasing the longer the person is held in detention.[2] The serious hardship to the applicant is exacerbated because he is separated from his family in Sri Lanka and cannot return there because of his well-founded fear of persecution.

    [2] M. von Werthern, K. Robjant, Z. Chui, R. Schon, L. Ottisova, C. Mason and C. Katona, The impact of immigration detention on mental health: a systematic review BMC Psychiatry (2018) 18:382; Aamer Sultan and Kevin O’Sullivan Psychological disturbances in asylum seekers held in long term detention: a participant-observer account; The Royal Australian and New Zealand College of Psychiatrists Position Statement 46: The provision of mental health services for asylum seekers and refugees September 2017

11. I consider this factor weighs significantly against the cancellation of the visa.

    The extent of compliance with visa conditions; the visa holder’s past and present behaviour towards the Department and whether there are persons in Australia whose visas would, or may, be cancelled under s 140

12. The delegate’s decision indicates there is no information to suggest that the applicant has not complied with his visa conditions and there is no record of any adverse behaviour towards the Department by the applicant. I consider this factor weighs slightly against the cancellation of the visa.

13. It is not in dispute that there are no persons in Australia whose visas would be cancelled under s 140.

14. These factors are not relevant to my consideration.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, including whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations

15. As noted above, the applicant has been assessed as a person to whom Australia has protection obligations under the Refugees Convention and this prevents his involuntary removal from Australia except in the very limited circumstances discussed above. The consequence for the applicant is that he is liable to be indefinitely detained with no realistic avenue to regularise his immigration status or depart Australia unless a determination is made under s 197D(2) that he is no longer a person in respect of whom a protection finding would be made or he elects to voluntarily return to Sri Lanka where he faces a well-founded fear of persecution.

16. It is submitted that faced with indefinite detention and no way in which to regularise his migration status, the applicant may well seek to voluntarily return to Sri Lanka and even such a voluntary return would breach Australia’s non-refoulement obligations. The applicant has given no indication in these proceedings that he intends to return to Sri Lanka voluntarily, even in circumstances where his visa remains cancelled. Rather his evidence to the Tribunal, as set out in his statutory declaration dated 29 November 2021 is that returning to Sri Lanka is not an option for him because he fears being imprisoned, killed or seriously harmed because of his [Relative A’s] membership of the LTTE and his perceived connections with that group.

17. I accept it is possible that the applicant’s position may change in the future, particularly if he is unsuccessful in revoking the visa cancellation and he remains in detention for an extended period. As observed by Deputy President Britten-Jones in XDJD and Minister for Immigration and Border Protection, a written request by an applicant to be removed from Australia may still constitute refoulement if an applicant requests that he be refouled ‘out of despair due to his prolonged detention’.[3]

    [3] [2021] AATA 2882 at [101]

18. Similarly I accept it to be theoretically possible that the Minister may at some time in the future move to make a determination that the applicant is no longer a person in respect of whom a protection finding would be made. Should such a determination be made, the applicant would no longer be the subject of a protection finding and his removal would not breach Australia’s non-refoulement obligations. However the material before me does not indicate such a move is currently under consideration. If it were to come under consideration in the future, the making of such a decision and its review may further prolong the applicant’s detention.

19. I consider this factor weighs significantly against the cancellation of the visa.

    Any other relevant matters

20. Other relevant matters include the arrangements that have been made for the applicant’s accommodation and medical treatment should his visa not be cancelled.

21. If the applicant’s visa is not cancelled and he is released back into the community, he will return to live with his friend [Witness A] in [Suburb 2], NSW where he lived between 2016 and 2018. [Witness A] confirmed this in his evidence to the Tribunal, telling the Tribunal that this arrangement had been made with the full knowledge and support of [Witness A’s] wife and two adult daughters.

22. [Witness A] gave evidence that during the time the applicant lived with him between 2016 and 2018 he took regular medication for his mental health. [Witness A] drove the applicant to his monthly depot injections and other medical appointments and to get his prescriptions filled and gave evidence there was never a problem getting the applicant to take the medication. [Witness A] told the Tribunal that the applicant’s mental health remained stable during the time he lived with [Witness A] and his family in [Suburb 2] and he never saw the applicant using cannabis or behaving strangely.

23. [Witness A] impressed the Tribunal as a person with a deep commitment to the applicant’s well-being. He gave evidence that he was shocked when told the details of the applicant’s offending in Melbourne, which was totally at odds with his own experience of the applicant’s behaviour while the applicant was living with [Witness A’s] family in Sydney.  The applicant’s representative confirmed to the Tribunal that he had taken [Witness A] through the details of the applicant’s criminal offending in 2016 and 2019, including the sexual offences, step by step.

24. [Witness A] told the Tribunal that he had discussed the situation with each of his wife and adult children and the family were unanimous in inviting the applicant back to their household. [Witness A] gave evidence that he was happy to continue taking the applicant to medical appointments and helping him with the medication. The Tribunal is advised that if the applicant’s visa is not cancelled and he is released from immigration detention, the applicant will be returned to NSW by the Department and [Witness A] will collect him from the airport. The applicant’s representative is in contact with Victoria Police regarding the potential variation of the applicant’s reporting obligations in the event he returns to NSW. I consider that the secure accommodation arrangements and community support available to the applicant weigh against the cancellation of the visa.

25. Also relevant are the applicant’s severe mental health conditions and the arrangements made for his ongoing medical treatment if his visa is not cancelled. During the time the applicant was in Sydney from 2016 to 2018 he received treatment for his mental health from the community mental health service [Agency 3] and his GP at [Health Service 1] and the medical evidence before the Tribunal indicates that the applicant has not always been compliant with his medical treatment.

26. A report from consultant psychiatrist [Psychiatrist C] of [Agency 3] dated 13 March 2018 indicates that the applicant was treated at that service from August 2016. She notes he had three hospital admissions in Victoria in 2016, the latter two being in the context of non-compliance with medication which led to him being discharged on a community treatment order. The treatment order made in Victoria in 2016 was not operative in New South Wales, but the applicant attended [Agency 3] to take his depot medication despite not being legally compelled to do so. She notes however that he was difficult to engage, often expressed a desire to stop medication and did not want to be seen by the treating team more than necessary.

27. [Psychiatrist C] reports the applicant went missing in October 2017 and it was later discovered he had travelled to Melbourne where he had relapsed and been admitted to hospital. He returned to Sydney after being discharged from hospital on an increased dose of anti-psychotic medication but not on a treatment order. There is no material before the Tribunal that would suggest the applicant engaged in any criminal offending in NSW, nor that he was ever subject to a treatment order under the relevant NSW legislation.

28. IHMS records suggest the applicant has largely been compliant with his medication while in immigration detention, although there have been occasions when he has missed his oral medications. Generally though he is reported to be compliant with his depot medication and described as cooperative, pleasant and obliging.

29. [A named doctor] of [Health Service 1] confirms that if the applicant returns to Sydney, he will arrange treatment for the applicant through referral to the community based mental health service. The applicant has also been referred to [a mental health] program run by [Agency 4] in NSW, a psycho-social support program providing one on one case management services as well as support with everyday life tasks and accommodation and employment. That organisation has written to the Tribunal confirming his referral and their assessment of his eligibility for the program, but states that final assessment and engagement in the program cannot be confirmed until the applicant arrives in Western Sydney.

30. At hearing the applicant gave evidence that when he was first diagnosed with schizophrenia he was a bit fearful of taking the medication and sometimes refused to do so. He was able to name his current medications and describe their purpose and said he had come to realise the value of his medication. He said he did not experience any side effects of the medications and was happy to continue taking them. He linked his criminal offending to periods in which he had been very unwell, saying it all happened because he stopped taking the medication and if he had taken it everything would have been OK.

31. Looking at the applicant’s medical history as a whole, I note that three of the hospital admissions occurred in the period surrounding the applicant’s diagnosis of schizophrenia in 2016. It is notable that he did not require hospital admission during the period he was living in Sydney between 2016–2018 even though he was not subject to a treatment order, nor is there any evidence to suggest he committed any criminal offences in NSW. The applicant was admitted to hospital on return to Melbourne in each of 2017 and 2020, on both occasions being homeless. Since 2020 he is reported to be generally compliant with his medication and he is described by IHMS staff as cooperative, pleasant and obliging when unwell.

32. The most recent psychiatrist’s review in the material before the Tribunal indicates that on 22 March 2021 the applicant stated that he had been on the depot for 4-5 years and was happy to keep taking it because he was ‘very sick’ without it and he agreed that long-term use of the antipsychotic medication reduces the risk of relapse. It was assessed that his schizophrenia was well-managed on the current medication. I consider the applicant’s willingness to continue with the anti-psychotic depot medication in the long term and the relative stability of his symptoms when receiving treatment weighs against cancellation of the visa.

    CONCLUSIONS

33. I consider the applicant’s 2019 criminal offending (sexual assault and direct sexual activity at another person) to be both serious and confronting, causing significant distress and trauma to the victim. Even though the 2016 criminal charges (interfering with a motor vehicle and failing to answer bail) were dismissed by the court without penalty, the offending is concerning in that the applicant attempted to enter two motor vehicles while the drivers were inside. The information available to the Tribunal about the 2020 offending (failing to report to police within seven days of release from custody; failing to comply with his reporting obligations and committing an indictable offence being the possession of cannabis while on bail) does not suggest that any complaint was made about the applicant by a member of the public. Rather it appears that the police made an unannounced visit to the applicant when he failed to report as required following his release from custody. The seriousness of the applicant’s 2019 offending, together with the fact that he has been convicted of criminal offences on two other occasions, weighs in favour of cancelling the visa.

34. However other factors to which the Tribunal must have regard weigh against cancelling the visa. The Tribunal must also have regard to the very serious consequences to the applicant of the decision to cancel the visa.[4]

    [4] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 (17 December 2018) (Allsop CJ, Markovic and Steward JJ); 267 FCR 628; Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589

35. Firstly, the Department has assessed the applicant as a refugee who has a well-founded fear of persecution if returned to his home country of Sri Lanka for reasons of his Tamil ethnicity and his imputed political opinion. The delegate accepted he was arrested and badly beaten by the Sri Lankan authorities prior to his arrival in Australia and that he is at risk of mistreatment and torture if returned to that country. As such he has a compelling need to stay in Australia.

36. Secondly, as a consequence of the applicant’s assessment as a refugee, he is the subject of a ‘protection finding’ for the purposes of s 197C(3) which means he cannot be removed from Australia except in very limited circumstances which do not currently apply. The consequence is that if the applicant’s visa remains cancelled, he is liable to be indefinitely detained with no apparent avenue to make a further visa application or to depart Australia unless he elects to voluntarily return to Sri Lanka where he faces a well-founded fear of persecution. Even such a voluntary return would be a breach of Australia’s non-refoulement obligations.

1. Thirdly, ongoing detention will cause significant hardship to the applicant, who lives with a serious and chronic mental illness. Evidence from [Psychiatrist A], the psychiatrist who treated him in hospital in 2019 and 2020, is that the applicant’s detention will be traumatising and result in a significant deterioration in his mental state.

2. Fourthly, the applicant’s criminal offending occurred in the context of severe mental illness and homelessness. During the time he has spent in immigration detention the applicant has been generally compliant with his treatment regime and agreeable to continue taking the anti-psychotic medication in the long term, accepting it reduces the risk of relapse of his illness. [Psychiatrist A] states that the applicant does not pose a risk to himself or others when abstinent and on regular medications. At his most recent psychiatrist’s review it was assessed that his schizophrenia was well-managed on the current medication.

3. Finally, the applicant has available to him a very significant amount of personal, social and medical support if his visa is not cancelled which greatly reduces the risk of a relapse of his illness and return to criminal offending. If the applicant is released into the community, he will live with [Witness A] and his family who have provided him with a high level of social, practical and economic support in the past. [Witness A] will drive him to his medical appointments and assist him to obtain and take his medication. The applicant will receive medical treatment from his GP and the community mental health team and he may also have access to the [specified mental health] [program].

4. While I cannot discount the possibility that the applicant may again stop taking his medication and suffer a relapse of his illness leading to further criminal offending, I consider that risk is greatly mitigated by the high level of community-based support the applicant will receive if he returns to live with [Witness A] and the applicant’s acceptance of the long-term role of anti-psychotic medication in the prevention of relapses.

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

   DECISION

6. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.

   Alison Murphy
   Member