Berryman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 599
•24 May 2022
FEDERAL COURT OF AUSTRALIA
Berryman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 599
Review of: Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421 File number: NSD 314 of 2020 Judgment of: BANKS-SMITH J Date of judgment: 24 May 2022 Catchwords: MIGRATION - review of decision of Administrative Appeals Tribunal affirming decision of a delegate not to revoke the mandatory cancellation of the applicant's visa - where representation made that offending caused by schizophrenia which was now managed by change in medication so diminishing the risk of reoffending - where applicant submitted risk of reoffending was low - where Tribunal found risk of reoffending was high, having regard to history of non-compliance by applicant with medical treatment regime, his history of drug use, and the risk of continued drug use - whether Tribunal erred by failing to properly identify, understand and evaluate the representation - no error in Tribunal's consideration of representation established - application refused Legislation: Migration Act 1958 (Cth) ss 501, 501CA, 499 Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 69 Date of hearing: 30 June 2021 Counsel for the Applicant: Mr KP Tang (pro bono) Solicitor for the Applicant: William Gerard Legal Counsel for the First Respondent: Ms R Francois Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 314 of 2020 BETWEEN: DELAINE JARROD AHIRAU BERRYMAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BANKS-SMITH J
DATE OF ORDER:
24 MAY 2022
THE COURT ORDERS THAT:
1.The applicant have leave to rely on the amended application dated 16 February 2021 and that such application stand as his ground of review.
2.The application be dismissed.
3.The applicant is to pay the first respondent's costs to be assessed by a registrar if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
Delaine Berryman is a citizen of New Zealand who arrived in 1980 as a child. He is aggrieved by a decision of the Administrative Appeals Tribunal affirming a decision of the delegate of the Minister not to revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth). Mr Berryman has departed Australia but has pursued his application in this Court for judicial review of the Tribunal's decision.
The applicant's offending and cancellation of his visa
Mr Berryman concedes that he has an extensive criminal record, spanning the period from 1991 to 2019. The record comprises more than 60 offences, including driving and dishonesty offences, and offences of violence. He was warned by the Department of Immigration and Multicultural Affairs in 2006 and 2008 that further convictions would result in a consideration of the cancellation of his visa.
In June 2007 Mr Berryman was convicted of assault occasioning bodily harm for which he was sentenced to 15 months' imprisonment. Although that is the only recorded sentence exceeding 12 months, he has been sentenced to multiple terms of imprisonment of less than 12 months and to many non-custodial sentences.
Relevantly, on 11 February 2019 Mr Berryman was convicted of several driving offences and sentenced to a term of imprisonment of 6 months and 1 day.
On 12 April 2019, when he was serving his term of imprisonment, his visa was cancelled by a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. This visa cancellation was mandated by s 501(3A) of the Act.
Request to revoke visa cancellation
On 18 April 2019 Mr Berryman requested revocation of the cancellation decision and made representations by way of a letter. It was accepted that Mr Berryman had made representations in accordance with s 501CA(4)(a) of the Act. On 9 May 2019 a delegate of the Minister notified Mr Berryman that they had received additional information and invited him to comment, and to complete a 'Personal Circumstances Form', which he returned on 14 May 2019. Relevantly, in that form Mr Berryman said that he suffers from chronic schizophrenia and is treated by monthly injections of a medication known as Aripiprazole.
On 12 July 2019 a delegate of the Minister wrote to Mr Berryman giving him an opportunity to comment on information that the Department had received concerning breaches of violence restraining orders (VROs) that related to domestic violence and occurred during the period 2011 to 2014. Mr Berryman made representations in response by way of a statutory declaration dated 23 July 2019, stating that at the time that he breached the orders he was 'not thinking straight' and 'was not on the correct mental health medication'.
Despite such representations, on 11 December 2019 a second delegate of the Minister decided not to revoke the mandatory visa cancellation decision. They were not satisfied that Mr Berryman passed the character test, and were not satisfied that there was another reason why the visa cancellation decision should be revoked, as required under s 501CA(4)(b)(i) or (ii).
Merits review by Tribunal
Mr Berryman sought review of the second delegate's decision not to revoke the visa cancellation decision in the Tribunal. A hearing was conducted on 19 February 2020.
The Tribunal was bound by Direction 79, made pursuant to s 499 of the Act. This Direction provides the principles by which such decisions should be made, and the primary and other considerations required to be taken into account.
Paragraph 13 of Direction 79 relevantly provides that the primary considerations to be taken into account are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)the expectations of the Australian community.
Paragraph 13.1(2) provides that when considering the protection of the Australian community, decision‑makers should give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraphs 13.1.1 and 13.1.2 provide further guidance.
On 5 March 2020 the Tribunal published its reasons, affirming the decision of the second delegate not to revoke the visa cancellation decision.
In short, the Tribunal, having regard to the Direction, and having recounted relevant evidence, concluded that the risk of Mr Berryman reoffending was high and the harm that would be caused, if he were to repeat the offending that he has engaged in in the past, is serious. It found that the primary consideration of protection of the Australian community, having regard to para 13.1(2), weighed very heavily against revocation of the cancellation of Mr Berryman's visa. It concluded that that consideration, together with and to a lesser extent the third primary consideration, outweighed the considerations that weighed in favour of the revocation of the visa cancellation decision.
The ground of review
There is one ground of review on this application. I note that Mr Berryman requires leave to amend his review application to rely on this ground.
Counsel for the Minister formally opposed leave being granted, but was willing to proceed with the hearing on the basis that she was in any event able to make full submissions as to the merits of the ground, with the application for leave to be determined as part of these reasons. Both Mr Berryman and the Minister sought to have the hearing proceed on that basis.
Mr Berryman complains that the Tribunal failed to constructively consider and engage with his representation that his risk of reoffending was diminished because his chronic schizophrenia is under control due to the (then) recent identification of the correct medication (Aripiprazole), and because of his newfound knowledge that adherence to his medication regime is required for the rest of his life. Such a claim, it was contended, clearly emerged from the materials.
Principles
The principles were not relevantly in issue.
Mr Berryman referred to well-known authorities that emerge from two different contexts. The first is the line of authority that has emerged from protection visa decisions that consider a contention that a particular protection claim expressly stated by the applicant, or that squarely arose on the materials before the decision‑maker, was not addressed by the decision‑maker. Those authorities included Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] (Gummow and Callinan JJ), [95] (Hayne J agreeing); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55], [58]‑[61] (Black CJ, French and Selway JJ); and the cases collected in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18].
The second relevant context was specifically that of s 501CA(4), where the decision‑maker, in determining whether they are satisfied that there is another reason for revoking a cancellation decision, has regard to representations made by the applicant. Mr Berryman referred to well‑known authorities including Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34].
More recently, the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 addressed how representations for the purpose of s 501CA(4) are to be considered, stating:
[24]Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision‑maker. And the decision-maker is not obliged 'to make actual findings of fact as an adjudication of all material claims' made by a former visa holder.
[25]It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[26]Labels like 'active intellectual process' and 'proper, genuine and realistic consideration' must be understood in their proper context. These formulas have the danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised'. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd, '[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind'. The court does not substitute its decision for that of an administrative decision-maker.
[27]None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
(footnotes omitted)
Before the Tribunal
Chronology of offending
The Tribunal attached a schedule of Mr Berryman's criminal offending. Despite a history of offending dating from 1991, there were gaps in that history. For example, there is a gap in recorded convictions after the 2007 conviction (referred to at [3] above) between 2008 and 2011, and a gap in recorded convictions between 2014 and 2019.
The events the subject of the 2019 conviction occurred on 1 December 2018 and resulted in convictions for three charges: failure to comply with a direction to stop in circumstances of aggravation; driving, causing or permitting a vehicle with a forged, replica or false plate to be driven on a road; and reckless driving to escape pursuit by police.
Evidence before the Tribunal
In written submissions filed in this appeal, Mr Berryman referred to four categories of evidence that he contends disclose the representations as to his mental health and schizophrenia before the Tribunal, being: (1) a written statement he provided direct to the Tribunal; (2) a statement of facts, issues and contentions; (3) a lengthy bundle of medical records; and (4) a parole assessment.
Mr Berryman also gave evidence before the Tribunal hearing, and was cross‑examined.
Written statement
Mr Berryman provided a written statement to the Tribunal on 20 January 2020. It included relevantly statements that:
… now since they found the right treatment for me I know I'll live the rest of my life normal. I believe all of the criminal acts that I did was mainly because of my medication and I'm very sorry for that. But I've been out of trouble up until now for 5 years and would remain out of trouble if I just had of kept taking my medication … And I promise you that I will stay on my medication.
Statement of facts, issues and contentions
The statement of facts, issues and contentions dated 11 February 2020 included statements to the effect that: he was abused as a child as confirmed by his mental health records; he has actively been attempting to address his mental health issues, and continues to receive medication and counselling; he has been receiving medication for chronic paranoid schizophrenia since May 2008; he has been diagnosed with a psychotic disorder, PTSD, personality deficits, cluster B type and marijuana abuse; there is no risk to the Australian community because he is not going to reoffend and because having faced the prospect of deportation he has had time to reflect on his poor choices and inadequate assistance for his mental health issues and has realised that it was time to change; he is of such a low risk of reoffending because he has addressed his underlying issues; and there is no evidence he would be a risk to the community.
Medical notes
For the purpose of the appeal, Mr Berryman identified certain medical notes as relevant to his representations. Those notes indicate:
(a)as at 26 September 2014 he was treated with the medication quetiapine 600mg XR. His psychiatrist had trialled a number of antipsychotics, but Mr Berryman reported that none of the medications had resolved his symptoms. The diagnosis is likely contributed to by his significant childhood trauma background and heavy polysubstance abuse starting from an early age;
(b)on 12 November 2014 Mr Berryman received his first depot medication (Paliperidone) and it was administered again on 19 November 2014, 18 December 2014 and 22 January 2015. Around this time his symptoms appeared to improve;
(c)on 22 January 2015 Mr Berryman's dosage of Paliperidone was reduced due to side-effects, although there had been an overall improvement in his mental state. The note recorded that he 'appeared much more settled in his mental state with reduced intensity of psychotic symptoms compared to previous reviews …';
(d)Mr Berryman received another dosage of Paliperidone on 20 February 2015;
(e)on 21 March 2015 Mr Berryman refused his medication due to side-effects that affect his social life (related to his sexual function);
(f)on 24 March 2015 it was noted that he does not like the injection, and that he is happy to take oral 'Risperidone' instead. He complained of side effects. He denied any current medical issues, but the notes record that there was ongoing cannabis use;
(g)on 3 September 2015 his mental health deteriorated. It was recorded that he turned up to the Start Court (a court for offenders with mental health issues) and was quite 'psychotic'. His doctor discussed with him that he would have to return to the Paliperidone depot, to which he agreed;
(h)on 27 October 2015 Aripiprazole is referred to in the notes and on 18 January 2016 he received Aripiprazole by depot;
(i)on 15 February 2016 he continued to use Aripiprazole and it was noted that there was improvement in his symptoms. He was less paranoid but still hearing 'some voices'. The doctor discussed with him 'again' the negative impact of illicit drugs on his mental state; and
(j)he continued to use Aripiprazole by monthly depot until about 27 August 2018. The notes record that he had an improved mental state (less frequent voices and a desire to remain compliant with 'meds') but also say that he continued cannabis use.
Parole assessment
The parole assessment detailed that Mr Berryman was diagnosed with schizophrenia and was receiving injections through Mirrabooka Mental Health. The parole assessment said he complied with treatment until 2018 before ceasing as he thought it was no longer required, because he was feeling better mentally. Since being in custody the injections commenced again on a monthly basis. Under the heading 'risk assessment', the parole assessment said:
Risk Assessment
Mr Berryman first came to the attention of the courts as a juvenile in 1989 and an adult in 1991 with traffic related offences. Since then, Mr Berryman's offending has continued with the majority of offences relating to driving with a few related to criminal damage, assault occasioning bodily harm, breach of family violence restraining order, disorderly behaviour and stealing. There have been occasional one and two year gaps in offending.
It appears that Mr Berryman's current offending behaviour and a large proportion of his offending history is related to poor cognitive and decision making skills. He was unable to provide a reason for doing what he did or convince the writer that he would not re-offend in the future. He stated that he is motivated to move forward in his life and take necessary steps to ensure he does not reoffend in the future. It is noted that Mr Berryman made the same remarks in his last Parole interview in 2009.
…
Recommendation
Mr Berryman's release to Parole is supported considering he presents with stable accommodation, satisfactorily completion on previous court orders, current stable mental health, ongoing treatment through depot injections and a supportive family.
(emphasis added)
Oral evidence before the Tribunal
The hearing was conducted on 19 February 2020. The Tribunal's reasons set out relevant oral evidence and it is extracted below.
The Tribunal's reasons
Because of the confined nature of this application it is not necessary to address all of the matters dealt with by the Tribunal. There are two parts of the reasoning that are of particular significance.
In the summary of the evidence, the Tribunal referred to the Personal Circumstances Form and the written statement. It cited that part of the written statement where Mr Berryman said that as long as he stays on his medication he will stay out of trouble. It then recorded his oral evidence about his drug use and his mental illness, stating as follows:
38.The Applicant was cross-examined about his drug and alcohol use. The following emerged:
•He started drinking at 16 years of age. He drank about a carton of beer a week. The rate of consumption decreased to the point that by 27 years of age he was probably drinking about a 'few cans a week'. He has not drunk for the last three to four years.
•He started using marijuana when he was 13. He used marijuana every day up until about two years ago when he stopped using it because it made him feel sick, 'like a hangover'. He did not think that he had a 'problem' with marijuana until he started to feel sick after using it. He smoked a strong form of marijuana (Kronic), which is sometimes referred to as synthetic cannabis, which was legal until about five years ago.
•He used heroin from the age of about 29 until he was 37.
•He used amphetamines (ice) from age 31 years until about two years ago. The Tribunal notes that 'ice' is the common name for crystal methamphetamine.
•When asked how often he used ice, the Applicant said every day. He was asked how he could afford ice on a disability support pension. He said that it was given to him and, when asked why people would give it to him, he said it was because he was 'respected in the neighbourhood'.
•When further cross-examined about the frequency of his ice use, the Applicant said that he did not take ice every day (as he had initially said) but probably took it:
Not every day, a few times a week at least and it's just like going around your friend's place and you get bored and nothing to do, so they pull out some drugs and they share it with you. So, you just have - get your day on.
•His evidence was that he took ice 'three strong days a week'. Asked to explain that, he said:
COUNSEL: Why do you use the phrase 'three strong days a week'; does that mean you would use heavily on three days and not so much on other days?
APPLICANT: Yes, yes, and not - so, not, yes, on the other days, so gives your body - - -
COUNSEL: Not at all on other days or just not strong - - -?
APPLICANT: Yes, not - because you've got to recuperate, your body's got to recuperate. You've got to eat because you can't eat when you're on that sort of stuff.
•He said that while he was using ice he was also smoking cannabis, '…at least a couple of cones a day', but that on some days he would have nothing.
39. In relation to his psychiatric illness, the Applicant's evidence was:
•He was diagnosed with schizophrenia when he was 18 or 19.
•He is on depot medication for his schizophrenia but there had been periods when he failed to take his medication. His evidence was that the right medication was not found until two or three years ago.
•He conceded that his offending was linked to his schizophrenia, more particularly to his failure to maintain the medication regime. The Applicant was taken to the Department of Corrective Services report dated 17 May 2013 which noted that the Applicant's non-compliance with his medication regime was linked to his offending behaviour against his ex-partner.
•The Applicant was also taken to the passage on page 3 of 4 of that report wherein the comment is made:
He stated that he believed that if he had been on his medication for schizophrenia at the time of the offence of Common Assault he would not have assaulted his expartner. Mr Berryman was not open to exploring his mental health issues, noncompliance with medication, and how they related to his offending behaviour and thinking.
•The Applicant said that he could not comment on that passage - he 'didn't really know'; he had a 'lot of things going on in his life'.
•The Applicant was cross-examined on whether he had had any discussions with medical practitioners about the link between marijuana use and schizophrenia. While at first he said that he could not remember, he then said that he had been told by a doctor that marijuana helped sedate him and that some doctors say that marijuana is good for pain.
•The Applicant was taken to a North Metropolitan Area Health Service Mental Health outpatient note and the following exchange occurred:
COUNSEL: Well, let's look at the documents that are before the tribunal. This is an outpatient note from the North Metropolitan Area Health Service, the mental health clinic, and it says towards the bottom of the page:
While there are no acute risk issues he remains at chronic risk of harm to himself and others due to his ongoing residual psychotic symptoms, chronic impulsivity and maladaptive coping strategies. This chronic risk is compounded, or increased, if he continues to use drugs.
So, this is 2014, not all that long ago and they're saying that your drug use increases your risk. Do you have any response to that?
APPLICANT: There's a lot of things going on in my mind.
COUNSEL: There were or there are?
APPLICANT: Yes, there were.
COUNSEL: So, in 2014 you weren't compliant with your medication and you were using drugs?
APPLICANT: Maybe, I think so, I don't know.
•The Applicant was taken to a further outpatient note:
COUNSEL: All right. Over the page on 279 there's again another outpatient note dated 24 October 2014.
Delaine was quite open initially during my discussion. He admitted to using Kronic and being non-compliant with his medication. He acknowledged that his judgment was impaired and he agreed about the benefits of starting to take his medication.
•The Applicant agreed that at that time he was not taking his medication.
•He was then taken to a report dated 12 April 2016 from Dr Morshedaski, whom the Applicant confirmed he saw regularly, in which Dr Morshedaski commented:
We had a long discussion about the detrimental impact of cannabis use and other illicit drugs on his mental health. He seemed to be not ready to deal with his cannabis use at this stage. He's aware of drug and alcohol service and we will continue to persuade him to deal with drug issues.
And:
He will remain at chronic risk due to the nature of his illness, his personality, vulnerability and ongoing illicit drug use.
•The Applicant conceded that notwithstanding these warnings he continued to use ice and marijuana. He was taken to a Client Management Plan dated 12 July 2018 where the observation is made that:
2)Potential to de-compensate due to excessive Alcohol use, illicit substance use leading to impulsive acts. Also attracting attention of forensic issues - VRO, Breaches of same
3)Poor engagement with services and reluctance to adhere to treatment, appointments
NB - client denies excessive Alcohol/illicit substance use on review although admits to THC abuse as an ongoing issue
•When it was put to the Applicant that those documents indicated that he had a poor record of adherence to medication regimes, the following exchange occurred:
COUNSEL: Now, that's on 12 July 2018 but it's repeated in a number of client management plans before that. But that's in 2018 and it's still recording that you have a poor history of adhering to treatment or medical appointments. Do you accept that in 2018 that you had a poor history?
APPLICANT: That's when I - that's when I stopped taking the medication.
COUNSEL: Well, you hadn't really been taking it very often before that, Mr - - -?
APPLICANT: Well, I was taking it five years before then. I was at Stake Hill serving my sentence for the same crime and then after - yes, I thought I was okay, so I stopped taking it but I wasn't and I should have stayed on it.
COUNSEL: Between 24 October 2017 and 26 June 2019, you missed a number of appointments with Dr Morshedaski. There are a number of letters in the supplementary documents - - -?
APPLICANT: That's when I stopped taking my medication.
COUNSEL: And you stopped attending the doctor?
APPLICANT: Yes, because I thought I was okay but five years prior towards it I was at Stake Hill and I was taking my medication every time and I thought the medication was - I thought I didn't need it. I thought I was fine but little did I know I had to be on it for the rest of my life.
(emphasis added)
The Tribunal then described (at paras 39‑40) evidence in relation to more recent drug use and the possibility of Mr Berryman using drugs in the future. The Tribunal recorded Mr Berryman's evidence that he had been taking his medication and that he had not used ice or marijuana since being in gaol. But when counsel asked him whether he intended on using marijuana again, the Tribunal recorded his response to the effect that he wasn't sure whether he would use marijuana again.
The Tribunal addressed the evidence of Mr Berryman's offending in some detail, noting his more serious driving offences and also noting that he has 30 traffic convictions for which he has received terms totalling 53 months, most of which have been served concurrently or were suspended. The Tribunal also noted the six convictions for breaching violence restraining orders.
The Tribunal then turned to para 13.1.2(1)(b) of Direction 79, addressing the likelihood of Mr Berryman engaging further in criminal conduct.
The Tribunal recorded Mr Berryman's submissions to the effect that he is of low risk of reoffending because 'he has addressed his underlying issues' and that he has completed courses while in prison and had no charges while he has been in prison or immigration detention.
The Tribunal referred to the evidence that only two courses had been undertaken by Mr Berryman and some 'belated' counselling sessions.
The Tribunal also extracted evidence about Mr Berryman's drug use at the time of his latest offending:
TRIBUNAL: … You went to prison … the last time was in December 2018. So your recollection is you weren't drinking at that stage in December '18?
APPLICANT: No, sir.
TRIBUNAL: Were you taking ice and using marijuana at that stage?
APPLICANT: (Indistinct.)
TRIBUNAL: And do you think your offending is associated with your taking ice and use of marijuana?
APPLICANT: Half of it.
TRIBUNAL: And since that time have you undertaken any drug abuse counselling?
APPLICANT: No, sir. Apart from the Holyoake, sir.
(emphasis added)
The Tribunal noted that despite the repeated warnings from courts and the Department, Mr Berryman had continued to reoffend.
It concluded that Mr Berryman has not made any real efforts at rehabilitation, has little insight into his own offending and continues to deny responsibility for his own actions.
The Tribunal was also concerned about the high likelihood of Mr Berryman returning to the same environment that had seen him continuously engage in serious criminal conduct, that environment being one in which drug use was accepted and regular, if not daily. The Tribunal said in relation to this:
119.Of equal concern to the Tribunal is the high likelihood of the Applicant returning to the same environment that has seen the Applicant just about continuously engage in serious criminal conduct. From the Applicant's own evidence it seems that in the environment in which he has lived and to which he will be returning, was one in which drug use, particularly the use of marijuana and methamphetamine, was accepted and regular, if not even daily. His evidence was that people gave him ice because he was respected in the neighbourhood.
120.In closing submissions the Respondent's counsel asked the Tribunal not to accept the Applicant's claim that he was given ice because he was respected because it was such an implausible claim, however, even if he paid for the ice, noting that his sole source of income is a disability support pension, the critical part of the Applicant's evidence is that he took ice most days of the week and smoked marijuana close to every day.
121.The Tribunal considers that it is likely, even highly likely that if the Applicant were allowed to stay in Australia he would return to an environment where drug use would be likely. This is so notwithstanding the Applicant's evidence that he would not go back to using drugs other than marijuana (including ice) because of his daughter (see [41] above). The Applicant's answer that he was not sure when asked whether he intended to use marijuana in the future (see [40] above) is obviously of concern to the Tribunal, particularly in the face of the repeated warnings that the Applicant has had from relevant medical practitioners as to the link between drug use and his schizophrenia (see [39] above). The evidence of [Ms B], with whom the Applicant says he will live if allowed to stay in Australia, was that she had tried to stop the Applicant using ice and marijuana in the past with no success.
The Tribunal then considered Mr Berryman's history of adhering to his medication:
122.The Tribunal is also concerned by the Applicant's poor history of adherence to his medication for schizophrenia which has been behind much of his past offending. As recently as 2018 it has been noted that the Applicant has failed to take his medication (see [39] above). The Tribunal cannot be satisfied that history will not repeat in that regard with the same consequences as have followed in the past.
The Tribunal said that in reaching its assessment as to the risk of reoffending it took into account the parole assessment, noting that parole was granted on terms that provided for supervision of Mr Berryman and noting that the task of the parole board was to assess risk in a more limited context.
127.… The parole period is a period of supervision during which the prisoner, depending on the terms, will be supervised by, and report regularly to a community corrections officer who will monitor the prisoner's compliance with the parole conditions imposed by the Board. That does not mean that the Parole Board is of the view that the Applicant is not a risk to the community, not even for the period of his parole, which in the case of the Applicant was for a three month period from May 2019 to August 2019, as indicated by their imposition of conditions on his parole. The import of the order is that the Parole Board was of the view that, with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community.
The Tribunal concluded by assessing the risk of Mr Berryman reoffending as high.
Representation was made
I accept that the representation the subject of the ground of review was made to the Tribunal. So much is apparent from the extract from the written statement. The question then is whether the reasons disclose that the Tribunal ignored, overlooked or misunderstood the representation in concluding, as it did in this case, that the risk of reoffending remained high, bearing in mind that the Tribunal was not obliged to accept uncritically Mr Berryman's claims.
Mr Berryman's submissions
Mr Berryman submitted that the medical notes, and other evidence before the Tribunal, support the conclusion that 'after the new treatment' of his condition there was an absence of criminal conduct, in contrast with his antecedents. He asserts that the Tribunal failed to engage, consider or refer to the cogent factual material that demonstrates the change of medication coincided with his crime-free period.
It was also submitted that Mr Berryman was well aware of the correlation between his alcohol and drug use and his prior criminal record, but says it was 'overlaid by his psychiatric condition and 'exacerbated by various treatments'.
Mr Berryman submitted that the Tribunal did not deal with the representation put forward as to why non-compliance with his medication will no longer be an issue.
Mr Berryman submitted that the closest the Tribunal got to dealing with this claim is at para 122 of the reasons (reproduced above), but submitted that the Tribunal did not deal with the representations he put forward. He submitted that if the Tribunal did so, it could have realistically resulted in a different outcome.
Consideration
I do not accept that the Tribunal erred as alleged, for the following reasons.
The Tribunal referred expressly to pertinent aspects of Mr Berryman's evidence that indicate it understood the representation. In particular it recorded that Mr Berryman conceded that his offending was linked to schizophrenia and more particularly to his failure to maintain his medication regime; that he claims he is at low risk of reoffending because he has addressed his underlying issues; and that 'as long as he stays on his medication he will stay out of trouble'.
Mr Berryman's assertion that his criminal offending is under control because of his treatment with the 'correct medication' (Aripiprazole) is not supported. It is true that there is a gap in convictions during a period when Mr Berryman was being treated with Aripiprazole (between around November 2015 and August 2018). However, Mr Berryman became non-compliant and reoffended. Therefore, the correlation between treatment with Aripiprazole and an absence of offending does not of itself answer the question of the risk of reoffending, where there is a history of non-compliance. Nor is it determined on the basis of continued use of medication for schizophrenia where there are other factors that impact upon his treatment, including drug use.
In those circumstances, I consider that the Tribunal was well aware of Mr Berryman's representation, and in fact undertook the task of assessing it, relevantly by considering questions arising on the evidence such as:
(a)whether Mr Berryman's admitted drug use impacted his risk of reoffending;
(b)whether Mr Berryman had shown that he would comply with his medical treatment regime, and whether the medical notes supported that; and
(c)whether the Tribunal could have confidence in Mr Berryman's claim that he would no longer offend as he now understood he needed to remain on treatment.
Logically such matters arise for consideration from Mr Berryman's representation.
It is appropriate to say something about the medical notes. There were many notes, and Mr Berryman complains that the Tribunal did not have regard to them all. I do not accept that submission. The Tribunal was not obliged to refer in its reasons to each and every piece of evidence to which it had regard. It is apparent from the reasons that the Tribunal referred to many of the medical notes, and they were the subject of comment during the Tribunal hearing. The medical notes are useful for a number of reasons. However, counsel for Mr Berryman did not take me to notes that comprised medical evidence that established that treatment with Aripiprazole alone would diminish Mr Berryman's offending. Rather, the evidence paints a clear picture that Mr Berryman's schizophrenia and mental health generally were affected by a number of more complex issues, including in particular his ongoing drug use.
There was one note from Royal Perth Hospital (3 November 2015) that indicated that 'on his previous discharge' (26 October 2015) Mr Berryman was reasonably well with a stable mental state through a change in his medications from Paliperidone Depot to Aripiprazole Depot, but that after discharge he had engaged in alcohol abuse and 'herbal mixture' that altered his state of mind. Other medical notes state the reason for the change from Paliperidone Depot to Aripiprazole was due to sexual side effects when on Paliperidone, and that in the absence of THC (cannabis) he functioned well (5 November 2015). Further, in November 2017 (while he was being treated with Aripiprazole) a consultant psychiatrist provided an opinion that said Mr Berryman had 'treatment resistant Schizophrenia,in that despite maximal treatment he still has a number of intermittent symptoms'.
Relevant to Mr Berryman's claim that he would stay on his medication, the Minister pointed to evidence of non-compliance with his Aripiprazole medication regime in 2018, noting medical reports that indicated that:
(a)he failed to attend for his medication (depot) on 16 May 2018;
(b)on 2 July 2018 he was 'reminded [to be] compliant for his depot';
(c)on 12 July 2018 his treating records show he had 'ongoing cannabis use' which the person making the note opined was a 'low risk currently but poses chronic risk due to the ongoing drug use & nature of illness' and the plan was to continue medication;
(d)he failed to attend for his medication on 9 August 2018 and a home visit to administer the medication was not successful; and
(e)a home visit was successful on 27 August 2018, being the date that Department of Health records indicate was the last date on which he was given his medication.
Also relevant to non-compliance, the Minister submitted that it is significant that Mr Berryman said he stopped taking the Aripiprazole medication because he felt he was better. It seems this was a decision made by Mr Berryman despite the interactions with medical practitioners that emphasised to him the need to continue treatment and despite the fact that when he failed to attend for treatment, home visits were initiated by the North Metropolitan mental health service to try and ensure he had his medication.
The medical notes referred to by Mr Berryman (see at [28] above) do not provide a persuasive basis for any contrary finding. They do not suggest that the change to Aripiprazole met all symptoms (even if it was, as Mr Berryman contended, 'the right drug'), and are consistent with the evidence that he continued to use illicit drugs that effected his treatment.
Returning to the Tribunal's reasons, there is engagement with the effect of drug use on Mr Berryman's treatment. There was consideration of his access to drugs and the frequency of drug use in the past. At para 39 of the reasons (extracted above, and some of which is emphasised for convenience) there is a recording of relevant evidence, including Mr Berryman's concessions of non-compliance with his medication regime, and the health service report (2014) to the effect that he is of chronic risk of harm to himself and others if he continues to use drugs. There is reference to Mr Berryman's concession that despite warnings from doctors about the detrimental impact of cannabis use and other illicit drugs on his mental health, he continued to use ice and marijuana. There is reference to a client management plan (2018) that referred to the link between his use of illicit substances leading to impulsive acts, and attracting attention of 'forensic issues' (noting the VRO breaches and Mr Berryman's admission of on-going use of cannabis). And there is reference to Mr Berryman's concession that his offending is associated with his use of drugs, or at least 'half of it'.
In light of that evidence, the risk of future drug use by Mr Berryman was relevant. In particular, the Tribunal recorded Mr Berryman's non-committal response to whether he would continue to use marijuana, and the likelihood that in the community he would be in an environment where he apparently had ready access to such drugs. The Tribunal asked about courses that Mr Berryman may have undertaken that would assist him in dealing with his drug use. These matters were all relevant to the question of the management of Mr Berryman's schizophrenia and the risk of reoffending.
There is also engagement with Mr Berryman's 'poor record of adherence to medication regimes' prior to and during 2018. The Tribunal refers to Mr Berryman's statement that he stopped taking his medication and 'little did I know I had to be on it for the rest of my life'. Whilst that can be seen as an indication by Mr Berryman that he has some insight and intended to stay on his medication, it was open to the Tribunal to weigh that evidence together with the evidence that suggested he had a history of non-compliance, particularly where he had been told previously of the need to stay on medication and had acknowledged the benefit of doing so.
Having regard to those matters, and in particular the content of para 39 of the Tribunal's reasons, it is apparent to me that the Tribunal's conclusions at paras 119‑122 reflect an understanding, identification and evaluation of the representation the subject of this review application, in accordance with the principles collected in Plaintiff M1/2021.
Mr Berryman contends that the Tribunal's conclusion at para 122 is 'the closest it comes' to assessing his representation and is insufficient. I do not accept that submission. The conclusion in para 122 must be read having regard to the reasons as a whole but in particular having regard to para 39 which dealt expressly with the risk of non-adherence to his medication regime and his history in that regard.
In my view, the Tribunal's reasoning, which extended to a detailed assessment of evidence relevant to the representation, is readily apparent and indicates that it understood and assessed the claim that going forward Mr Berryman would maintain a particular treatment regime that would diminish his risk of reoffending. Having understood the representation, it was a matter for the Tribunal to weigh the evidence that related to it, and the reasons disclose that such task was undertaken. Whilst others may have weighed aspects of the evidence differently, that is not the point, and to dissect such analysis further risks descending into a review of the merits.
Viewed carefully and collectively, there are reasonable and logical grounds for a decision‑maker to doubt and so test Mr Berryman's claim that his ongoing risk of offending was met (or sufficiently diminished) by commitment to Aripiprazole treatment. What is apparent is that sadly Mr Berryman suffers from a serious psychiatric condition and that whilst his offending is linked to that condition (as he conceded and the Tribunal acknowledged), the circumstances that have contributed to his offending in the past are complex, and include a range and combination of factors such as his traumatic history, his substance abuse and his schizophrenia.
Orders
I return to the question of leave. There was only a short delay in seeking to amend the application for review. The solicitors on the record for Mr Berryman accepted that any fault for such delay lay with them and said it was a result of the intervening Christmas period and competing priorities. In all the circumstances of this case, including the position of the parties noted at [16] above, it seems to me that it is expedient in the interests of justice that there be leave granted to Mr Berryman to rely on his amended application.
However, the appeal must be dismissed.
Finally, I acknowledge and thank Mr Tang for accepting a pro bono brief on Mr Berryman's behalf.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. Associate:
Dated: 24 May 2022
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