BNHW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

BNHW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 63 (19 January 2022)
Division:GENERAL DIVISION
File Number(s): 2018/2579
Re:BNHW
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:19 January 2022
Place:Sydney

The correct or preferable decision is to set aside the delegate’s decision dated 10 May 2018 and substitute it with a decision to revoke the mandatory cancellation of the Applicant’s Class AH Subclass 101 Child (Migrant) visa.
...............................[sgd].........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 applied – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – best interests of minor children – expectations of the Australian community – ties to Australia – impediments to removal – international non-refoulement obligations considered – decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth), ss 499, 500, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
19 January 2022

The Applicant seeks review of a decision of a delegate of the Respondent not to revoke the mandatory cancellation of the Applicant’s Class AH Subclass 101 Child (Migrant) visa (‘the visa’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), made on 10 May 2018 (‘the reviewable decision’).
BACKGROUND
Much of the background to this matter was usefully set out in detailed form by the Respondent and to avoid lengthy repetition, that summary of events is set out below:

Date

Event/Offence

2 October 1980

The Applicant was born in Cambodia.

25 June 1996

The Applicant arrived in Australia (aged 15 years).

28 August 1998

The Applicant was found to have committed:

·     burglary - intent to steal/ theft

Without conviction, the matter was adjourned to 27 August 1999.

4 February 1999

The Applicant was convicted for:

·     traffick heroin;

·     handle/receive/retention of stolen goods;

·     obtain property by deception (6 charges);

·     burglary (3 charges);

·     theft (4 charges);

·     possess heroin; and

·     fail to answer bail granted

He was sentenced to a community based order for 12 months and ordered to perform 150 hours of unpaid community work.

He was also ordered to pay $700 in compensation.

3 May 1999

The Applicant was convicted for:

·     failure to comply with community based order;

·     failure to answer bail granted;

·     theft; and

·     attempt to obtain property by deception

He was fined a total of $550.00 with $53.00 statutory costs.

14 July 1999

The Applicant was found to have committed:

·     handle/receive/dispose of stolen goods (4 charges);

·     go equipped to steal/ cheat

In relation to each charge he was sentenced to 2 months detention in a youth training centre.

25 October 1999

Disability Client Services Psychologist assessed the Applicant to be functioning with the range generally associated with "mild" intellectual disability.

28 April 2000

The Applicant was convicted for:

·     traffick heroin (2 charges);

·     known thief loiter in public space; and

·     possess money - being proceeds of crime

With convictions, the matter was adjourned to 22 December 2000.

16 June 2000

Victoria Police records indicate that:

·     the Applicant broke a number of items in his room at an accommodation house in Kew, Melbourne;

·     another person woke up and confronted the Applicant;

·     the Applicant armed himself with an expandable camera tripod leg and tried to attack the victim;

·     the victim deflected the blow but received cuts to face and hands, before disarming the Applicant;

·     the Applicant then punched and kicked the victim and ran from the premises;

·     the Applicant then ran into the premise's driveway and smashed the windscreen of the victims car and damaged panels;

Police arrived and took the Applicant to hospital for psychiatric assessment.

29 June 2000

The Applicant was convicted for:

·     possess heroin;

·     use heroin;

·     possess suspected stolen goods;

·     possess regulated weapon; and

·     possess prescribed weapon without exemption.

For each charge he was sentenced to 3 months detention in a youth training centre.

27 July 2000

The Applicant was found to have committed:

·     criminal damage (intent damage/ destroy);

·     assault with weapon;

·     unlawful assault;

·     possess heroin; and

·     use heroin.

The matter was adjourned to 26 July 2001 without conviction.

3 August 2000

The Applicant was convicted for:

·     theft; and

·     possess money - being proceeds of crime

With convictions, the matter was adjourned to 26 July 2001.

25 August 2000

The Applicant was charged for:

·     theft-from shop (shopsteal)

As at 15 December 2017, the charge was not determined by a court.

5 March 2001

The Applicant was convicted for:

·     burglary;

·     theft (2 charges);

·     use heroin;

·     go equipped to steal/cheat;

·     possess regulated weapon;

·     traffick heroin; and

·     burglary

He received 5 sentences of 6 months concurrent imprisonment.

14 August 2001

The Applicant was convicted for:

·     burglary (4 charges);

·     attempt to commit indictable offence;

(for each charge he was sentenced to 9 months concurrent imprisonment)

·     theft (3 charges);

·     retention of stolen goods;

·     possess property being proceeds of crime;

(for each charge he was sentenced to 4 months concurrent imprisonment)

·     go equipped to steal/cheat;

(for this charge he was sentenced to 1 month concurrent imprisonment)

31 August 2001

The Applicant was convicted for:

·     use heroin;

·     failure to comply with undertaking order (2 charges);

·     fail to answer bail;

·     theft of a motor vehicle; and

·     possess heroin

He received 2 sentences of 3 months concurrent imprisonment.

19 November 2001

The Department sent the Applicant a notice of intention to consider cancelling a visa under subsection 501(2) of the Act.

23 April 2002

The Applicant was convicted for:

·     burglary;

·     theft;

·     use heroin;

·     possess heroin;

·     possess property being proceeds of crime;

·     fail to answer bail granted; and

·     traffick heroin

He received 2 sentences of 3 months imprisonment, wholly suspended.

19 August 2002

The Department sent the Applicant a notice of intention to consider cancelling a visa under subsection 501(2) of the Act.

2 October 2002

The Applicant was convicted for:

·     burglary (2 charges);

·     theft (2 charges)

(for these charges he was sentenced to an aggregate of 9 months concurrent imprisonment)

·     breach of the suspended sentence order dated 23 April 2002;

·     use heroin;

·     possession heroin;

·     traffick heroin;

·     possess property being proceeds of crime; and

·     fail to answer bail granted

(for these charges his suspended sentence was wholly restored and he was ordered to serve 3 months imprisonment).

8 May 2003

The Applicant was convicted for:

·     assault police;

·     resist police (2 charges);

·     bring money to Victoria - being proceeds of crime;

·     theft from motor vehicle;

·     attempt theft from motor vehicle;

·     traffick heroin;

(for these charges he was sentenced to an aggregate of 9 months concurrent imprisonment, with 6 months to be served in custody and the balance in the community)

·     possess property being proceeds of crime (2 charges);

(for these charges he was sentenced to an aggregate of 9 months concurrent imprisonment, with 6 months to be served in custody and the balance in the community)

·     burglary;

·     possess controlled weapon without excuse; and

·     possess prohibited weapon without exemption or    approval

19 November 2001

The Department sent the Applicant a notice of intention to consider cancelling a visa under subsection 501(2) of the Act.

23 April 2002

The Applicant was convicted for:

·     burglary;

·     theft;

·     use heroin;

·     possess heroin;

·     possess property being proceeds of crime;

·     fail to answer bail granted; and

·     traffick heroin

He received 2 sentences of 3 months imprisonment, wholly suspended.

19 August 2002

The Department sent the Applicant a notice of intention to consider cancelling a visa under subsection 501(2) of the Act.

2 October 2002

The Applicant was convicted for:

·     burglary (2 charges);

·     theft (2 charges)

(for these charges he was sentenced to an aggregate of 9 months concurrent imprisonment)

·     breach of the suspended sentence order dated 23 April 2002;

·     use heroin;

·     possession heroin;

·     traffick heroin;

·     possess property being proceeds of crime; and

·     fail to answer bail granted

(for these charges his suspended sentence was wholly restored and he was ordered to serve 3 months imprisonment).

8 May 2003

The Applicant was convicted for:

·     assault police;

·     resist police (2 charges);

·     bring money to Victoria - being proceeds of crime;

·     theft from motor vehicle;

·     attempt theft from motor vehicle;

·     traffick heroin;

(for these charges he was sentenced to an aggregate of 9 months concurrent imprisonment, with 6 months to be served in custody and the balance in the community)

·     possess property being proceeds of crime (2 charges);

(for these charges he was sentenced to an aggregate of 9 months concurrent imprisonment, with 6 months to be served in custody and the balance in the community)

·     burglary;

·     possess controlled weapon without excuse; and

·     possess prohibited weapon without exemption or approval

(for these charges he was sentenced to an aggregate of 9 months concurrent imprisonment, with 6 months to be served in custody and the balance in the community)

·     breach of suspended sentence order dated 2 October 2002;

·     burglary (2 charges);

·     theft (2 charges);

(for these charges his suspended sentence was wholly restored and he was ordered to serve 6 months imprisonment)

19 September 2003

The Applicant was convicted for:

·     burglary

He was sentenced to 2 months imprisonment, concurrent.

30 January 2004

The Applicant was convicted for:

·     burglary (3 charges);

(for these charges he was sentenced to an aggregate of 12 months concurrent imprisonment)

·     theft (5 charges);

·     go equipped to steal/cheat (2 charges);

·     handle/receive/retention of stolen goods; and

·     possess property being proceeds of crime (2 charges)

(for these charges he was sentenced to an aggregate of 12 months concurrent imprisonment)

10 August 2004

The Applicant was convicted for:

·     burglary

(for this charge he was sentenced to 4 months concurrent imprisonment)

·     burglary (5 charges);

·     theft (5 charges);

·     unlawful assault

(for each charge he was sentenced to 6 months concurrent imprisonment)

19 May 2005

The Applicant was convicted for:

·     burglary;

·     theft;

·     go equipped to steal/ cheat;

·     traffick heroin (2 charges);

·     use heroin;

·     handle/receive/retention of stolen goods (3 charges);

·     deal property suspected as proceeds of crime; and

·     possess heroin

He was imprisoned for a total of 12 months.

3 June 2005

The Department sent the Applicant a notice of intention to consider cancelling a visa under subsection 501(2) of the Act.

3 November 2005

The Applicant was convicted for:

·     burglary;

·     thefts

He was imprisoned for a total of 2 months and paid compensation $2420.00.

10 January 2006

The Department sent the Applicant notice of decision not to cancel visa under section 501 of the Act. Formal warning was issued to the Applicant.

15 February 2006

The Applicant was convicted for:

·     act/threaten to act in a way that is prejudicial or threatens the security and good order of the police gaol

He was fined for $500.00.

1 August 2006

The Applicant was convicted for:

·     attempt at burglary (2 charges);

·     go equipped to steal/cheat;

·     burglary (2 charges);

·     theft (3 charges);

·     intentionally damage property;

·     knowingly deal with proceeds of crime;

·     handle/receive/retention of stolen goods; and

·     knowingly deal with proceeds of crime

He was imprisoned for a total of 9 months.

24 October 2006

The Applicant was convicted for:

·     prohibited person possessing unregulated firearm; and

·     possess controlled weapon without excuse

He was imprisoned for a total of 7 months.

28 August 2007

The Applicant was convicted for:

·     burglary (4 charges);

·     theft (3 charges);

·     attempt at burglary; and

·     possess prohibited weapon without exemption or approval

He was imprisoned for a total of 12 months.

1 February 2008

The Department sent the Applicant a Formal Counselling Letter, warning him that any further criminal convictions or any other conduct that comes within the scope of s 501(6) of the Act could result in the cancellation of his visa under s 501.

17 December 2008

The Applicant was convicted for:

·     traffick heroin;

·     deal property suspected as proceed of crime (3 charges)

·     possess controlled weapon without excuse;

·     handle/receive/retention of stolen goods;

·     deal property suspected as proceeds of crime;

·     burglary;

·     theft; and

·     fail to answer bail granted (2 charges)

·     He was imprisoned for a total of 18 months and fined $423.00.

1 June 2010

The Applicant was convicted for:

·     traffick drug of dependence; and

·     deal property suspected as proceeds of crime

He was imprisoned for a total of 1 month.

10 March 2011

The Department sent the Applicant a notice of intention to consider cancelling a visa under subsection 501(2) of the Act.

17 May 2011

The Department sent the Applicant a notice of decision not to cancel visa under section 501 of the Act. The Applicant was given a formal warning.

30 August 2011

The Applicant was convicted for:

·     burglary (2 charges);

·     theft;

·     possess drug of dependence (not named); and

·     go equipped to steal/ cheat;

He was imprisoned for a total of 12 months.

12 July 2013

The Applicant was convicted for:

·     traffick heroin (2 charges); and

·     deal property suspected proceed of crime (2 charges);

He was sentenced to community corrections order for 18 months.

13 August 2013

The Applicant was convicted for:

·     burglary (2 charges); and

·     theft (2 charges)

He received a sentence of imprisonment for a total of 6 months but the sentence was wholly suspended for an operational period of 12 months.

1 August 2014

The Applicant was convicted for:

·     dishonestly receive stolen goods;

·     deal property suspected as proceeds of crime;

·     possess heroin;

·     breach of the suspended sentence order of 13 August 2013;

·     contravene suspended sentence order;

·     burglary (2 charges); and

·     theft (2 charges)

He was imprisoned for a total of 6 months to serve out the restored term of imprisonment.

19 March 2015

Victoria Police records indicate that:

·     Police were called to the Applicant's house;

·     there had been an argument between the Applicant and his partner,[……], with whom he was living;

·     the Applicant reportedly kicked, punched and choked his partner;

·     specifically, the Applicant was reported to have held his partner down across her throat and then placed her in a head lock;

·     it was reported that he then kneed her in the head and punched her in the face and body;

·     it was reported that the Applicant then pushed her to the ground and continued to strangle her on the floor, and that his partner tried to fight back with a pair of scissors but was overpowered by the Applicant and was strangled again;

·     Police arrived and took the Applicant's partner to hospital where she was treated for injuries;

·     the partner also recounted a prior assault where the Applicant allegedly held a knife to her throat when on ice a number of years previously. This prior assault was not reported to police.

29 April 2015

The Applicant was convicted for:

·     dishonestly use/take in retention stolen goods;

·     commit indictable offence whilst on bail granted; and

·     possess heroin

He was imprisoned for a total of 36 days

1.

7 May 2015

The Applicant was charged for:

·     contravene community correction order

The court noted that the charge was 'proven' but recorded no separate sentence.

19 May 2016

Victoria Police records indicate that:

·     Police were called to the Applicant's house;

·     […..] and the Applicant have been in an 'on again and off again' relationship over the last 12 months;

·     there was a current and active intervention order prohibiting the Applicant from committing family violence or damaging [……]’s property;

·     the night before the Applicant had returned home after purchasing medication and he later stated he used heroin;

·     at 3 am the Applicant woke his partner, became verbally abusive and punched a hole in the wall;

·     it was reported that this caused his partner to be in fear so she asked him to leave, which he did;

·     the Applicant's partner then located the Applicant on the front porch in a drug affected state and she called the Police.

10 August 2016

Victoria Police records indicate that:

·     Police were called to Applicant's house;

·     an argument had occurred between the Applicant and his de facto partner, [……], due to the partner refusing to sleep with the Applicant as she felt unwell;

·     it was reported that the Applicant pushed his partner up against the bedroom wall and put her into a head lock causing her to choke;

the Applicant then threw his partner to the floor, and then broke wooden slats off a cupboard and started stabbing himself;

·     the Applicant's partner pushed the Applicant out of the house and locked the door, before calling the police;

·     Police attended and observed light bruising around the partner's neck; Police took photographs and placed the Applicant under arrest.

11 August 2016

The Applicant was served with a family violence notice (FVSN). The Applicant then called his partner, yelled at her, and hung up. Breach of FVSN recorded.

11 August 2016

Police records indicate that:

·     the Applicant had entered the hospital room of an individual who was recovering from a heart surgery and stolen his wallet;

·     subsequently $1200.00 in unauthorised transactions were made on the credit cards; and

·     the Applicant was apprehended and processed.

2 June 2017

The Applicant was convicted for:

·     recklessly cause injury

·     criminal damage (intent to damage/ destroy);

·     unlawful assault;

·     contravene family violence safety notice;

·     burglary (5 charges);

·     attempt at burglary;

·     contravene family violence final intervention order;

·     commit indictable offence whilst on bail;

·     theft (4 charges);

·     deal property suspected proceed of crime;

·     theft;

·     obtain property by deception (10 charges);

·     attempt to commit indictable offence; and

·     negligently deal with proceeds of crime

He was sentenced to two aggregate sentences of 12 months concurrent imprisonment and one aggregate sentence of 2 months concurrent imprisonment.

4 August 2017

The Applicant's Class AH Subclass 101 Child (Migrant) visa was mandatorily cancelled under s 501(3A) of the Migration Act (Original Decision).

24 August 2017

The Applicant made representations to the Minister seeking revocation of the original decision.

17 April 2018

The Applicant was convicted for:

·     contravene family violence final intervention order; and

·     criminal damage (intent to damage/destroy)

He was fined $500.00.

26 April 2018

The Applicant lodged an application for a Protection (subclass 866) visa.

10 May 2018

A delegate of the Minister decided not to revoke the original decision under s 501(3A) of the Act (Reviewable Decision).

11 May 2018

The Applicant lodged an application for review of the Reviewable Decision.

1 August 2018

The Administrative Appeals Tribunal affirmed the reviewable decision.

August 2018

While in prison as a result of his June 2017 convictions, the Applicant was involved in an assault of another detainee.

12 March 2019

The Federal Court of Australia (Justice Wheelan) made orders by consent, setting aside the decision of the Administrative Appeals Tribunal of 1 August 2018 and remitting the matter for redetermination according to law.

The Court notes that the Minister conceded that the decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal failed to have regard to evidence or information before it, being evidence about the existence of the Applicant's intellectual disability.

7 May 2019

A delegate of the Minister decided to refuse the Applicant's application for a Protection (subclass 866) visa.

14 May 2019

The Applicant applied for review of the decision to refuse his application for a Protection (subclass 866) visa on the basis that the delegate was satisfied that he is a danger to the Australian community.

Around October   r2019

The Applicant kicked and punched detention facility staff.

16 January 2020

The Tribunal affirmed the decision to refuse the Applicant's application for a Protection (subclass 866) visa.

24 July 2020

The Federal Court dismissed an application for review of the Tribunal's decision of 16 January 2020.

1 February 2021

The Full Federal Court dismissed an appeal of the Federal Court's judgment of 24 July 2020.

ISSUE

As both sides accept that the Applicant does not pass the character test, the only issue before the Tribunal is whether there is ‘another reason’ why the original decision should be revoked pursuant to s 501CA(4) of the Act.
RELEVANT LEGISLATION AND POLICY
The relevant legislation and policy is as follows:
Section 501CA(4) of the Act states:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
On 8 March 2021 the Minister made the Direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 15 April 2021.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-biding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the four primary considerations are:
(a)     protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)     whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)      the best interests of minor children in Australia (Primary Consideration 3); and
(d)     expectations of the Australian community (Primary Consideration 4).
Section 9 of the Direction provides that the four other considerations which must be taken into account where relevant are:
(a)     international non-refoulement obligations;
(b)     extent of impediments if removed;
(c)      impact on victims;
(d)     links to the Australian community, including:
(i)       strength, nature and duration of ties to Australia;
(ii)      impact on Australian business interests.
THE APPLICANT’S EVIDENCE
The Applicant affirmed his statements dated 29 June 2018, 5 November 2019 and an undated statement finalised on 14 May 2021. When questioned about his criminal history, he said that he started using heroin around the age of 18 or 19 and that he also began trafficking in heroin at that time.
He continued using and trafficking heroin as set out in his criminal record, except for periods where he was in jail or in detention.
Overall, the Applicant accepted his criminal record, although he attempted to downgrade some of his violent offences by claiming his response was triggered by others including the police.
The Applicant said that he was an engineer and that he had studied at TAFE and also that he had done course while in prison. There was no evidence that the Applicant had studied or that he had in fact qualified as an engineer.
In relation to the domestic violence offences against his former partner, including an ‘attempt to choke her’, the Applicant accepted that those events had occurred and he expressed considerable remorse. The Applicant said that he was currently in regular contact with the victim but that he was now ‘just a friend’ and that he would not move back in with her. This was somewhat inconsistent with the Applicant saying that his former partner was in a lot of pain from various health conditions and that he wanted to take care of her. He said that he had attended domestic violence programs in prison both in his oral evidence and paragraph 19 of his undated statement.
The Applicant said that he had been ‘clean’ of using heroin for ‘almost four years’. He also said that he had smoked cannabis once in detention, although later in his evidence he denied this had occurred. This evidence was somewhat inconsistent with the evidence of Dr. Carroll.
The Applicant said that he does not intend to use drugs again in the future, including cannabis, despite what he had told Dr. Carroll. The Applicant said that he wanted to work and to change his life. He said that he had come to realise that people behaved differently if they were using drugs.
The Applicant, when further questioned about his drug use in detention, said that he could not explain the record from his time at Liverpool Hospital and denied that he had ever used heroin in detention.
In his final statement, which was undated but finalised on 14 May 2021, the Applicant referred to ongoing medical support from Dr John Chow at 181 Chapel Street, Prahran, who was described as an ‘addiction specialist’. He said he had been seeing Dr. Chow ‘since I was a child’. There was, however, no evidence before the Tribunal from Dr. Chow.
The Applicant said that he was taking methadone for his heroin treatment, and that he was also taking medication for psychosis and depression, as set out in his statement of 5 November 2019.
The Applicant was at pains to emphasise that he had come to realise the very deleterious effect that drugs had had on his life and that he wanted to change for the better. He said that he had reconciled with his family and that he would be able to go back and live with his mother. He accepted that no members of his family, including his mother, had ever visited him in prison or in detention. There was no evidence before the Tribunal in relation to the Applicant’s mother.
The Applicant accepted that in the past, he had had a very difficult relationship with his mother, and that he had been forced to move out of the house because of a former boyfriend of his mother’s when he was about 16 years old. The Applicant also referred to a ‘godmother’ but said that he does not see her anymore. It was suggested to the Applicant by counsel for the Respondent that he had invented the godmother, which the Applicant denied.
There was some reference to the Applicant having a child called ‘A’ but the Applicant never had any role in his life, had not spoken to him for a long time, and did not know his age or where he lived.
The Applicant confirmed his current medications were Deptran and Olanzapine.
When finally questioned as to why the Tribunal should accept the Applicant’s assurances ‘it was different now’ despite the fact that the Applicant had ignored previous warnings from the Department and indeed had not been deterred from his conduct by periods of imprisonment, the Applicant said that it was because of his time in detention which had given him time to reflect.
There were some inconsistencies in the Applicant’s evidence but overall, I accept that the Applicant was honest in the oral evidence that he gave to the Tribunal, and that some of the inconsistencies are properly explained by his intellectual impairment, medication, and very traumatic and deeply troubling life history.
DR. CARROLL’S EVIDENCE
Dr. Carroll is a forensic psychiatrist with very extensive qualifications both from Australia and overseas. He prepared two reports, the first dated 2 October 2019, and the second dated 12 November 2021.
When questioned about resources available to the Applicant if he were to be released from detention, Dr. Carroll said he was now less confident that the Applicant would be eligible for care management in the public health system due to funding cuts, which might mean that he would currently fail to meet the requisite criteria to access resources and receive psychiatric help within the public health system, particularly if the Applicant were free of active symptoms and complying with his medication regime. There was however the possibility that the Applicant would receive help through the Disability Justice System in Victoria.
Dr. Carroll expressed concern that the Applicant may lack insight into his mental illness, and that he would be unable to properly ‘label’ his experiences when he was psychotic at the end of 2019. He felt that the Applicant, when in the early stages of psychosis, may not pick up the warning signs and be aggressive towards others, especially if he was ‘hearing voices’.
Overall, Dr. Carroll did not consider the Applicant to be a high risk to the community as a result of his psychosis. Rather, Dr. Carroll rated the risk as medium, particularly as the Applicant was currently stable and had been taking his medication.
Dr. Carroll also said that the Applicant had the capacity to work, and that work would be good for him.
In relation to his drug use, Dr. Carroll said the Applicant had told him that he had used opiates and cannabis while in detention, and therefore there was a high likelihood of future drug use. He accepted that the Applicant may not have always told him the truth, and said he had a history of deception especially in relation to his drug taking.
Dr. Carroll thought there was a high likelihood of the Applicant committing crimes related to drugs, including trafficking and property offences if he were to be released into the community.
The Applicant was said to be on a low dose of Olanzapine (5 milligrams).
Dr. Carroll said that there were a number of factors that would be very important if the Applicant were to be able to live successfully in the community, including attending mental health appointments, and taking his medication, having stable housing, and a support network.
Dr. Carroll noted that the Applicant is familiar with Disability Justice, and said that stable housing was in his view a key factor.
When questioned about the Applicant’s social interactions, Dr. Carroll noted that throughout his life, the Applicant had had very little opportunity to form social relationships and that he was currently quite isolated.
Dr. Carroll also said that the Applicant might have complex post-traumatic stress disorder, based on the various events that have occurred over the course of his life. He said this could be factor which affected the Applicant although it was not always constant.
Dr. Carroll said he had no doubt that the Applicant would be best served by being released into the community.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 90.
Nature and seriousness of the Applicant’s offending
As can be seen from the summary of the Applicant’s criminal offending, his offences are numerous. Moreover, his crimes include assault, criminal damage, burglary, theft, drug trafficking, assaulting police officers, possession of prohibited weapons, and failure to comply with bail and suspended sentencing conditions. There are also a number of family violence offences involving assault and domestic violence orders.
It is of concern that the Applicant has been repeatedly charged with drug offences, including trafficking in heroin which is known to cause substantial harm to the Australian community. There does not appear to be any evidence of any serious attempt at rehabilitation.
The number of violent offences must also be viewed as very serious. The Applicant sought to minimise some of his offences that involved carrying weapons, including saying one of them only involved a small pocket-knife, which may indicate a lack of understanding or a proper respect for the law. There is no doubt that these burglaries would have caused harm to the victims, not just by the loss of property but also through fear aroused through the actions of the Applicant. It also appears that the Applicant may have stolen another patient’s wallet whilst he was in hospital although the Applicant said he had found the wallet on the floor.
The consequences of the Applicant’s property offences were best summarised by Magistrate Dwyer in her sentencing remarks, in which she stated as follows:
People are entitled to feel safe and secure in their homes and the community’s got a right to feel safe.
The Tribunal gives significant weight to the Applicant’s assault offences against police officers in the conduct of their duty. It is of concern that the Applicant sought to minimise the gravity of this behaviour and to blame the police. This demonstrates a lack of respect for authority and for the Australian legal system.
The Tribunal also gives weight to the fact that the Applicant has been guilty of assault within immigration detention. Dr. Carroll, in his report of 2 October 2019, recorded two incidents – one in 2018 where the Applicant assault another detainee apparently without any provocation, and another in late 2019 where the Applicant kicked and punched staff during a psychotic episode.
Given the Applicant’s very extensive criminal history (more than 150 criminal offences since 1998) and the fact that many of those offences caused serious harm to the community through drug trafficking, assault, and theft, there is no doubt that the Applicant’s behaviour has constituted a serious risk to the Australian community and caused significant harm, both to individual citizens and to the community as a whole, not least because of the financial cost to the community in dealing with the Applicant’s offending. In this regard I note that the Applicant has had some 35 court proceedings, and that his offending has involved the use of significant police and supervisory justice resources.
In summary, the Applicant’s offending history must be considered as very serious.
Risk to the Australian community should the Applicant reoffend
In considering this matter, I have regard to 8.1.2(2) of Direction 90.
As set out above, the Applicant’s offending history involves violence, property offences, drug trafficking, and assault of police, all of which would cause significant harm to the Australian community if such conduct were to continue.
With regard to the likelihood of further offending on the part of the Applicant, I accept the evidence of Dr. Carroll who said firstly that the chances of the Applicant being involved in violent offending as the result of his psychosis was medium but not high risk, although this was dependant on the Applicant complying with this medication regime.
Dr. Carroll raised concern as to whether the Applicant would continue to take his medication, particularly if he did not receive support, if he were to be released into the community. It was of concern that the Applicant appeared uncertain as to which medications he was taking and that he was said by Dr. Carroll, to lack insight into his previous psychotic behaviour.
In relation to the Applicant’s likelihood of future offending as a result of his drug addiction, Dr. Carroll said that the risk profile was different.
In his most recent report at paragraph 109, Dr. Carroll had said that, given the Applicant’s long history of drug offences, there was a high likelihood that he would commit further drug and property related offences due to drug addiction. Dr. Carroll also said that it was hard to know what the Applicant really thought as opposed to what he says and that he was forced, in some regards, to rely on what the Applicant had to him in his consultation.
Dr. Carroll also thought the Applicant would require significant assistance if he were released into the community and not reoffend. The Applicant was described as “very needy”.
In particular, the Applicant would require secure housing, and access to support services. Unfortunately, there is no guarantee that secure housing and the relevant services would be available to the Applicant. Further, the Applicant’s history is such as to raise doubt as to his capacity to avoid further offending even if such services were to be available to him. In this regard, I note that the Applicant told the Tribunal ‘this time it was different’ because he had realised that he may be removed from Australia and he really did not want that to happen. He said he had come to understand the harmful effect of drug use on his life and that he was committed to remaining free of drugs. Unfortunately, this was somewhat inconsistent with the evidence as to his drug use whilst in detention including marijuana which he admitted he had smoked on at least one occasion whilst in detention. This is compounded by the lack of evidence of the Applicant having seriously engaged in any form of drug and alcohol counselling or abstinence programs.
The Tribunal also notes that the Applicant continued to offend despite warnings from the Department as to the cancellation of his visa. It is fair to say that the Applicant was given many chances, both through the justice system and from the Department, to reform and failed to do so, even after giving assurances that he would do so. In light of Dr. Carroll’s evidence, I cannot be certain that the Applicant would have understood the seriousness of any warnings.
Overall, this primary consideration weighs very heavily against revocation of the delegate’s decision.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE
In this regard, I note paragraph 8.2.2 of Direction 90.
The Applicant has been convicted of serious family violence against his former partner on 2 June 2017, including putting her in a headlock and attempting to strangle her and throwing her to the ground. The Applicant admitted that he had caused his former partner to be seriously afraid. The offences occurred in his former’s partner’s home.
It appeared that this may not have been the only family violence incident in relation to the Applicant’s former partner.
The assault in 2017 occurred when the Applicant was taking drugs.
The Applicant expressed deep remorse and ‘shame’ in relation to his domestic violence offending. He also said that he had attended family violence training whilst in custody and that he had completed the Violence Intervention Program at Port Phillip prison.

The Tribunal notes that Dr. Carroll said that the Applicant’s likelihood of domestic violence reoffending would be reduced by family violence counselling and treatment for his drug abuse.
The Tribunal also takes into consideration the fact that the Applicant failed to comply with family violence order designed to protect his former partner.
Overall, having regard to the seriousness of the Applicant’s family violence, the lack of evidence of his having attended courses to deal with family violence ,and his contravention of family violence orders, I give this primary consideration significant weight in favour of non-revocation. In reaching this conclusion, I have taken into account the Applicant’s mental health concerns and his lack of reading and writing skills.
BEST INTERESTS OF MINOR CHILDREN
The Applicant gave evidence that he had a son, A, who is an Australian citizen.
The Applicant was unsure of his date of birth but it appears his son may now be about 16 years of age.
The Applicant does not appear to have seen A since at least 2008, and gave evidence that he was not aware of where he lived and had not been in contact with him for a very long time.
The Applicant also appeared not to be in contact with A’s mother.
Accordingly, on the evidence, it is clear that the Applicant plays no part in A’s life, or indeed that A is in fact his son. Accordingly, I give no weight to this consideration and note it was not pressed on the Applicant’s behalf.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Direction 90 sets out the expectations of the Australian Community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
In assessing the weight to be given to this consideration, I take into account the fact that the Applicant has, on any reasonable assessment, had a life of great hardship. Particularly as a young person, he needed help and support that has not made available to him and certainly appears to have been a contributory factor to his drug and alcohol abuse. In fact, despite being described as a needy person, there is no evidence that his needs have ever been met, nor can there any certainty that they will be met in the future. The Australian community, in my view, would take into account that a person in the Applicant’s position, especially given his mental impairment, would and should be given assistance.
Although on the face of it, this consideration might be seen to weigh heavily in favour of non-revocation, this needs to tempered by taking in account the Applicant’s circumstances and accordingly I give medium weight to this consideration in favour of non-revocation.
OTHER CONSIDERATIONS
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
It was accepted by all parties that non-refoulement obligations are owed in respect of the Applicant and accordingly, he will not be removed from Australia. What will happen to him in Australia is therefore an important consideration.
The Tribunal notes the following decision of the Full Federal Court in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55, where the Court said as follows at paragraph [136]:
As all the authorities have recognised, there are a number of executive options available for genuine consideration after a person has exhausted her or his options to challenge a visa refusal or cancellation, although there are some that could not rationally be said to be likely to result in a favourable outcome, as Rares J pointed out in FRH18. While those options are being genuinely, promptly and reasonably considered and pursued, a person may nevertheless suffer continued loss of liberty with no chronologically fixed endpoint, and no endpoint ascertainable by the individual concerned, so that her or his detention is properly described as “indefinite”.
…
Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA(3)
In this case, given the Applicant’s circumstances, he would appear to face a period of lengthy, perhaps indefinite, detention. Although the Respondent referred to a range of administrative actions that would be available to the Minister, no real alternative was presented and certainly nothing in the short term.
It is important to note that the Applicant has already applied for a protection visa, which was denied on the basis that the Tribunal was satisfied that the Applicant was a danger to the community for the purposes of s 36 of the Act. This decision is currently under appeal to the Full Court of the Federal Court.
It is highly unlikely that the Applicant would ever be accepted by a third country, given his intellectual impairment, history of drug use and criminal history.
Dr. Carroll stated clearly in his evidence that the Applicant’s best interests would be served if he were released into the community. Particularly if he were to receive appropriate supports, the Applicant was said to have a chance of rehabilitating himself and having a better life.
Apart from ensuring that the Applicant has a home and regular meals, it is difficult to see how a long period of detention would be of benefit to him. He appears on the evidence to have had access to drugs within detention and to have smoked marijuana, which was not beneficial to him, during the period he has been in detention.
It appears that the Applicant has taken medication for his psychosis on a regular basis whilst in detention, but he has had at least one psychotic episode for which he required hospital treatment. The Applicant gave evidence that whilst in detention he had been forced to take medicines which made him ‘feel bad’. There was no evidence of the Applicant receiving ongoing counselling or meaningful support. It would appear he had been offered trauma counselling but had chosen not to participate. The Applicant had not formed any friendships whilst in detention and was said to keep to himself.
I give this consideration substantial weight in favour of revocation.
IMPEDIMENTS TO REMOVAL
In this regard I note paragraph 9.2.1 of Direction 90.
Even though the Applicant has had a very difficult life in Australia, it is effectively the only country he has known. Before coming to Australia, he spent time in a refugee camp. He in the unfortunate position of having no strong links anywhere, but to the extent he does have links, those links are with Australia.
In the Applicant’s own words, when speaking of Cambodia, he said he ‘hardly speaks the lingo’. He arrived in Australia when he was 16 years old. He was born in a refugee camp on the Thai-Cambodia border, and abandoned by his mother shortly after. He spent time with another family and periods of time in refugee camps before finally arriving in Australia. He has no familiarity with Cambodia. He has no family or friends in Cambodia and is highly unlikely to find employment, housing or medical treatment in that country.
In light of all of the evidence, the Tribunal considers that it would be almost impossible for the Applicant to re-establish himself in Cambodia, if he were ever to return there.
Given the Applicant’s need for significant ongoing medical or other support, it is unlikely that such supports would be available to him in Cambodia, or that such supports would be comparable to those which might be available to the Applicant in Australia. At least in Australia, there is evidence that if the Applicant were to return to Victoria, supports may be available to him as a former prisoner. Further, I accept that the Applicant would be at serious risk of discrimination and harm in Cambodia.
I note that it was accepted by both parties that non-refoulement obligations are owed in the respect of the Applicant.
I give substantial weight to this consideration in favour of revocation.
IMPACT ON VICTIMS
There is no evidence regarding this consideration before the Tribunal. This consideration is not relevant to this matter.
LINKS TO THE AUSTRALIAN COMMUNITY
Strength, nature and duration of ties
The Applicant has the majority of his life in Australia. He is familiar with Australia’s language and customs. Unfortunately, the Applicant commenced his offending behaviour shortly after he arrived in Australia, and his offending behaviour has continued for most of his time in Australia, apart from periods in detention.
There was no evidence of the Applicant having any meaningful employment history in Australia.
Unfortunately, there was also no evidence of the Applicant having any support network or friendship groupings, including any association with a church or any social network. There was no evidence that the Applicant had maintained any contact with his family, who would appear to have disowned him. I note the evidence that the Applicant had written to his brother but he had received no reply.
The Applicant did say he was in contact with his former partner and there was no evidence that that was in fact the case. The Applicant had previously said he had a ‘godmother’ but he said he was no longer in contact with that person, if indeed she in fact existed at all. Further, whether or not A is the Applicant’s biological son, there is no evidence that there is any relationship at all between them.
The Applicant, in his evidence to the Tribunal, said that he regarded himself as Australian. His lack of any social network is perhaps best explained his mental health issues, the alienation he suffered on first coming to Australia, and his long criminal history. I accept, however, that whatever ties he may have developed are ties to Australia.
There is no evidence that the Applicant has any business connections in Australia.
Overall, I give this consideration moderate to heavy weight in favour of revocation.
CONCLUSION
In many respects, this is an impossible case given the circumstances of the Applicant. In reaching a conclusion, the Tribunal has to balance a number of difficult considerations including the possibility of indefinite detention against the very real possibility that without support the Applicant will not succeed if released into the community and lapse back into his old pattern of drug use and offending.
I give significant weight to Dr. Carroll’s oral evidence to the Tribunal that the Applicant’s best interests would be served by his being released into the community.
Dr. Carroll gave evidence that the Applicant’s time in detention had been ‘wasted’ time. There is no evidence that the Applicant had made any progress while in detention, although it would appear he has abstained from the use of opiates and clearly was prevented from causing harm to members of the Australian community.
The Applicant said that his time in detention had caused him to think deeply about his previous life and that he was now committed to remaining drug free and trying to develop his life in the Australian community. He will need significant support to do so, and on the basis of Dr. Carroll’s evidence it must be considered that there is at least a reasonable possibility that he will not receive all or some of the supports necessary. In particular, stable housing was seen as critical.
There is no evidence that the Applicant would be likely to benefit from spending further time in detention, particularly if he could see no end to it. Dr. Carrol’s evidence was to the contrary.
Unfortunately, there does not appear to be any acceptance on the part of either state or federal government nor any third party of a duty of care to someone such as the Applicant in relation to ensuring access to services or taking positive steps towards their ultimate rehabilitation. Indefinite deprivation of liberty and the resulting uncertainty is likely to be further deleterious to the Applicant’s mental health.
There was no evidence before the Tribunal that the Applicant would be given any support by those non-profit groups which assist refugees, but there must be at least a possibility that the Applicant will receive assistance from such organisations as well as Disability Justice in Victoria. Although not in the Tribunal’s remit to make orders in relation to the matter, it would clearly be in the Applicant’s best interest for his legal representatives to make appropriate arrangements, where possible, for him to be able to smoothly transition from detention to living in the community.
Although the primary considerations all weigh against the Applicant, this is not conclusive of the matter. It is well understood that it is ultimately up to the decision-maker to balance all of the evidence and to reach a decision which is considered to be correct.
In the current case, although I hold grave fears for the Applicant if he is released into the community, I am of the opinion that based on the evidence overall, particularly the evidence of Dr. Carroll who was the only independent expert, he should be given the opportunity for rehabilitation and for a life within the community, as opposed to the possibility of indefinite detention, especially given that he has already been in detention for a considerably longer period than any prison sentence he has received. The Applicant has served his time, as required by the Australian criminal justice system. Th evidence is that his time in detention has not been to his benefit and will not be beneficial to him if it were to continue.
Overall, I consider that the balance weighs, however slightly, in favour of the revocation of the delegate’s original decision.
DECISION
The correct or preferable decision is to set aside the delegate’s decision dated 10 May 2018 and substitute it with a decision to revoke the mandatory cancellation of the Applicant’s Class AH Subclass 101 Child (Migrant) visa.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

............................[sgd]............................................
Associate
Dated: 19 January 2022

Date(s) of hearing: 29 November 2021

Counsel for the Applicant: Mr A. White

Solicitors for the Applicant: Mr B. Goulding, Refugee Legal

Solicitors for the Respondent: Mr T. Aviram, Clayton Utz

[2022] AATA 63

19 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date(s) of hearing:	29 November 2021
Counsel for the Applicant:	Mr A. White
Solicitors for the Applicant:	Mr B. Goulding, Refugee Legal
Solicitors for the Respondent:	Mr T. Aviram, Clayton Utz