CRRN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1112
•28 February 2023
CRRN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1112 (28 February 2023)
Division: GENERAL DIVISION
File Number: 2022/10205
Re: CRRN
APPLICANT
And Minister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Deputy President J Owen
Senior Member Theodore Tavoularis
Date: 28 February 2023
Place: Sydney
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 6 December 2022 not to revoke the mandatory cancellation of the Applicant’s Resolution of Status (Class CD)(Subclass 851) visa.
.................[SGD]...................... ……………….…[SGD]….…….……...
Deputy President J Owen Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – mandatory visa cancellation – applicant fails to pass character test – whether there is another reason the visa cancellation should be revoked – Ministerial Direction No. 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of Australian children – expectations of the Australian community – links to the Australian community – prolonged detention – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 33 Guardianship Act 1987 (NSW)
Migration Act 1958 (Cth) ss 4, 501
CASES
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
SCDZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4442
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President J Owen
Senior Member Theodore Tavoularis 28 February 2023
INTRODUCTION AND BACKGROUND
1.CRRN1 (‘the Applicant’) is a 45-year-old citizen of Afghanistan. He first came to Australia in October 1999 and has not left this country since his arrival.2 On 24 August 2015, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’ or ‘the Respondent’) mandatorily cancelled the Applicant’s Resolution of Status (Class CD)(Subclass 851) visa (‘the visa’) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).
2.The Applicant was duly notified of this mandatory cancellation decision and was invited to make representations in an effort to revoke that decision. He made those representations on 24 December 2021.3 On 6 December 2022, a delegate of the Respondent refused to revoke the mandatory cancellation decision made on 24 August 2015.4 There followed an application to this Tribunal on 13 December 2022 wherein the Applicant sought review of the delegate’s refusal to revoke the decision made on 6 December 2022.
3.The Hearing proceeded before us on 8 and 9 February 2023. The Hearing received oral evidence from:
1 A pseudonym was allocated to this matter pursuant to an order made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) on 22 December 2023.
2 Exhibit 7, p 187.
3 Ibid, p 83.
4 Ibid, p 8-29.
·the Applicant;
·Dr Gerald Chew, a forensic psychiatrist; and
·Ms Julie Marama, Assistant Principal Guardian of the NSW Trustee & Guardian Office.
4.There was also written evidence before the Tribunal. The totality of that material was consolidated into an agreed Exhibit List,5 a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
5.It should also be noted that on 2 October 2020, the New South Wales Civil and Administrative Tribunal made a guardianship order in respect of the Applicant’s affairs. The order confirmed the appointment of the Public Guardian as the guardian of the Applicant.6 This order was, on 29 October 2021, extended for a further two years until 29 October of this current year, 2023.7
LEGISLATIVE FRAMEWORK
6.Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
7.As mentioned earlier, the Applicant duly made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory
5 See Transcript, p 2, lines 18-34.
6 Exhibit 7, p 103-105.
7 Ibid, p 106-107.
cancellation of the Applicant’s visa may be exercised. This requires the Tribunal to address these two issues:
(a)whether the Applicant passes the character test; and, if not,
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
8.In their respective Statements of Facts, Issues and Contentions (‘SFIC’), the parties are ad idem that the Applicant does not pass the character test.8 This unanimity was not disturbed at the Hearing before us. It does not require much of a detailed reading of the Applicant’s criminal history for one to readily reach the conclusion that he does not pass the character test9 on the basis of his being sentenced to at least two terms of imprisonment of 12 months or more.10
9.In October 2007 a District Court of NSW sentenced the Applicant to a custodial term of four years upon a conviction for ‘Shoot at person w/I to inflict gbh-SI’. In July 2015, a District Court of NSW sentenced the Applicant to a custodial term of 32 months’ imprisonment upon a conviction of ‘Assault with act of indeceny-T2’. We are therefore satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
10.In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 90’) has application.11
8 Exhibit 1, para [60]; Exhibit 5, p 4, para [12].
9 Section 501(3A)(a) of the Act.
10 Section 501(7)(c) of the Act.
11 Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
11.The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
‘Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.’12
The principles in paragraph 5.2
12.Paragraph 5.2 of the Direction is designed to, ‘provide a framework within which decision- makers should approach their task’ under s 501 or 501CA of the Act (as the case may be). Summarised where appropriate, the principles are:
(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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (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-
12 Direction No 90, para [6]. See also Direction, para [4(1)] which provides that a, “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
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 insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
13.Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which we must be guided in making my decision.
14.The Primary Considerations we must take into account are:
‘(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.’13
15.The Other Considerations which, where relevant, we must take into account, ‘include but are not limited to’:
‘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’14
13 Direction, para [8].
14 Ibid, para [9(1)].
16.Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision- makers that:
‘(1) Information from independent and authoritative sources should be given appropriate weight;
(2) Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3) One or more Primary Considerations may outweigh other Primary Considerations.’
An initial argument raised on behalf of the Respondent
17.Prior to addressing the abovementioned Primary and Other Considerations, it is necessary to first engage with an argument put on behalf of the Respondent at the commencement of the Hearing about how this Tribunal should receive, treat and ultimately weigh the evidence of the Applicant.
18.It is worth quoting two portions of the Transcript to understand the essence of the submission. First, there was the question of how the Tribunal should treat the Applicant’s evidence in circumstances where he has a diagnosis of (inter alia) severe intellectual impairments. That component of the argument was put thus:
‘MR ESKERIE: Tribunal, if I may briefly address the evidence. There are a couple of matters that I’ve briefly discussed with my friend, the head [sic] of this hearing, and I think it’s appropriate that I flag it with the tribunal now before the evidence is heard. I’ve been reflecting on how we receive evidence in this case from the applicant in the circumstances where there is a public guardian and in circumstances where the applicant’s case throughout is corroborated by a lot of the medical evidence, is that he has severe intellectual impairments. And, indeed, the very basis for the appointment of the public guardian is that he has cognitive impairments such that he is incapable of making (indistinct) decisions.’15
19.The second question involved a further reservation about whether the Applicant had sufficient capacity to participate in the Hearing at all:
‘SENIOR MEMBER TAVOULARIS: Well, we need to be cautious, Mr Eskerie, because I presume that the submission you’re making does not necessarily go to the applicant’s capacity to participate in the hearing at all. But what you’re saying is
- as I understand it - that his symptoms cause - must cause the tribunal to receive
15 Transcript, p 9, lines 6-15.
his evidence and consider his evidence both today and in the past - to receive that evidence with caution. I think that’s what you’re saying?
MR ESKERIE: Perhaps I’m putting it a bit stronger, Senior Member. We don’t have evidence before the tribunal indicating that he has no capacity to participate. Although there is a public guardian who is instructing his representatives and making decisions about this matter as it proceeds. So there’s clearly no capacity to make decisions about the conduct of the proceeding.’16
20.For reasons that follow we are satisfied that the Tribunal’s capacity to receive and weigh evidence from the Applicant can be fortified as a result of the following factors. First, there is the legislative starting point appearing at s 33 of the AAT Act which relevantly provides that:
33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
…
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
21.It would be irresponsible of us to arbitrarily rely on this provision as a means of justifying receipt of evidentiary material on an ‘all and sundry’ basis. This provision does, to our minds, set certain general parameters around the scope of material to be considered by the Tribunal in a merits review such as this. It then falls to the Tribunal to (1) responsibly and credibly receive that material as a means of discharging its statutory function and (2) to have regard to the evidence as a whole when taking the step of admitting something into evidence.
22.Second, with particular reference to this holistic approach to the evidence, this Tribunal has the benefit of the Applicant’s affairs now under the management and control of the Public Guardian. As mentioned earlier, a representative of the Public Guardian did give evidence at the instant Hearing and it was open to the parties to ventilate issues of the Applicant’s capacity to both make documents and to provide oral evidence about those documents.
23.Third, this Tribunal also had the benefit of the expert evidence of the forensic psychiatrist, Dr Gerald Chew, who provided both oral and written evidence to the Hearing. It was open to the parties to ventilate any issues of capacity to and through the oral and written evidence
16 Transcript, p 9, lines 44-47; p 10, lines 1-10.
of Dr Chew. It was also open to the parties to put to Dr Chew any specific document purportedly made by the Applicant and to seek Dr Chew’s expert opinion on matters such as (1) the Applicant’s capacity to make such a document and (2) his capacity to provide coherent and reliable oral evidence thereon.
24.Fourth, while there is evidence of clinical reporting about the pre-dispositive elements behind the Applicant’s offending, those reports are now aged, respectively dating from 200417, 200518, 200619, 200720, 201121 and 201422. At his most recent sentencing hearing that took place in July 2015, the learned sentencing Judge23 was not interested in any psychopathological explanation of the Applicant’s offending conduct and proceeded to sentence him on this basis:
‘In the Court’s view, notwithstanding the fact that he was an involuntary patient in this hospital, he knew what he was doing and the consequences of his conduct. The Court is not persuaded that there is any reduction in moral culpability as a consequence of either mental health issues and/or any intellectual disability.
…
Apparently his mental health has improved and he might now see the importance of continuing with his medication while in custody and when released to the community.’24
[Our emphasis]
25.To whatever extent the sentencing remarks of Judge Sides could now be displaced for the purposes of the instant hearing, we are of the view that this was a matter best left to the parties to ventilate by and through the evidence of Dr Chew and any further submissions, written and/or oral they may make during and at the conclusion of this Hearing.
26.We are therefore of the view that (1) this Tribunal should receive the Applicant’s oral evidence; and (2) should analyse and weigh that evidence through the lens of the four
17 Exhibit R6, p 199.
18 Ibid, p 211, 228.
19 Ibid, p 171.
20 Ibid, p 178; Exhibit 7, p 157.
21 Exhibit 7, p 154.
22 Exhibit R6, p 185.
23 His Honour, Judge Sides, District Court of NSW.
24 Exhibit 7, p 43.
abovementioned factors together with any ancillary oral or written evidence before the Tribunal facilitating that exercise.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
27.In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
28.In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
29.We will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
30.When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non- citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The offending – a summary
31.Stated in short compass, this Applicant has compiled a five page, single line spaced criminal history in Australia during the period (expressed in terms of sentencing episodes) January 2002 until July 2015 – a period of some 13 and a half years. He has contrived to commit something in the order of 6025 offences that were dealt with at 23 separate sentencing episodes at various courts in NSW. His offending has occurred across a broad realm of unlawful conduct comprising:
·offending against the person;
25 This number includes the five offences ‘called up’ by a District Court in NSW; this number also includes a further called up offence by a Local Court in NSW.
·drug offences;
·property offences/larceny;
·driving/motor vehicular offending including unlicenced driving and drink driving;
·offending against police officers in the execution of their duty;
·repeated failures to observe the requirements of lawfully made instruments;
·travelling on public transport while not holding a valid ticket to do so;
·domestically violent offending, including repeated breaches of domestic violence orders;
·possession of a dangerous implement such as a knife;
·weapons offences;
·trespass-type conduct; and
·assault-type offending with indecency.
32.We will focus on perhaps the most two significant offences as can be gleaned from the nature of the sentences imposed upon the Applicant for that offending. First, in October 2007, the Applicant was convicted of two offences: (1) ‘shoot at person w/I to inflict gbh-S1’ for which he received a head custodial term of four years’ imprisonment with a non-parole period of two years and six months; and (2) ‘discharge loaded arms w/I to inflict gbh to person-S1’ for which he received a head custodial term of four years with a non-parole period of two years and six months.
33.This offending saw the Applicant attend the home of a person with whom the Applicant perceived that he had a disagreement. When attending the person’s residence, the sister of that person looked through a window to ascertain who was seeking entrance into the residence. Upon noticing the person’s sister looking through a window to ascertain who was outside, the Applicant deliberately discharged a flare gun through the subject window causing serious and significant injuries to the sister/victim and otherwise initiating several small fires in the subject property arising from the explosive nature of the fair. After firing the flare gun, the Applicant departed the residence and discarded the weapon on a side brick fence of premises in the local area.
34.Second, in July 2015 at a District Court in NSW the Applicant was convicted of the offence of ‘Assault with act of indecency-T2’ and sentenced to a head custodial term of 32 months with a non-parole period of 16 months. This offending occurred while the Applicant was an involuntary in-patient at the Cumberland Hospital at Westmead. He entered the female bathrooms and forcibly attempted to have sex with a female patient at that hospital. The sentencing remarks relevantly record the following:
‘…The victim entered the toilet cubicle. She closed the door but did not lock it and began using the bathroom facilities. Although the facts do not state she took her pants down, it is obvious that she did when one reads on in the agreed facts. The Offender entered the female toilet area, opened the unlocked cubicle door and walked into the cubicle. He closed the door behind him and moved towards the victim who was sitting on the toilet seat. He asked her: “do you want to sleep with me” and the victim replied in robust terms in the negative. The Offender then locked the cubicle door. He pushed the victim off the toilet seat forcing her to fall to the tiled floor. She attempted to get up and tried to pull her pants up but he pushed her back down. By this time his jeans and shorts were off and his penis was exposed. The victim was lying on her back and, when she attempted to scream in the hope that inmates seated nearby in the lounge, which was only five metres away, would assist her, the Offender put his hands over her mouth so she could make no noise. The Offender then pushed his right knee into the victim’s thigh causing a bruise. When the victim attempted to bang the bathroom door with one of her hands, the Offender grabbed that hand and forced it towards her leg. He then firmly pressed both of his fists into each side of the victim’s stomach and then forced them together.
The Offender then walked towards the door and said to the victim: “get yourself together before coming out, no one wants to see you in this state”. He then left the bathroom or toilet area. These events give rise to the matter on the indictment.
After the victim came out of the toilet she went to the sunroom, which is next to the common room. The Offender made his way to the sunroom and sat next to her. He started feeling the victim’s breasts with both hands. Because she was fearful of him, the victim did not say anything. The Offender felt the victim’s breasts under her clothes and squeezed her on the breasts, causing a bruise to her left breast. The victim slapped him on the leg and walked away…’26
Paragraphs 8.1.1(1)(a)(i),(ii) and (iii)
35.Even a cursory review of the Applicant’s offending history clearly and obviously demonstrates his commission of (1) violent and sexual crimes; (2) crimes of a violent nature against women; and (3) acts of family violence. As such, his offending is squarely captured by the language appearing at paragraph 8.1.1(1)(a) of the Direction. Offending of this type is viewed ‘very seriously’ by the Australian Government and the Australian community.
26 Exhibit 7, pp 37-38.
There can be no cavilling with the finding that this Applicant’s conduct captured by paragraph 8.1.1(1)(a) of the Direction must be found to be very serious.
36.At the Hearing before us, the Applicant’s representative accepted that the Applicant’s offending did fall within the auspices of paragraph 8.1.1(1)(a) of the Direction and that it must be viewed very seriously:
‘SENIOR MEMBER: Just before we go to risk, if I could, Mr Bhutani, the first limb of primary consideration 1 refers to the nature and seriousness of his offending thus far.
MR BHUTANI: Yes.
SENIOR MEMBER: Could I take you, then, to the language in the chapeau - - - MR BHUTANI: Yes.
SENIOR MEMBER: - - - of paragraph 8.1(1)(a). And in that chapeau the nomenclature there is very serious. So where you have offences of violence against women the direction tells us that the Australian government and the Australian population views that offending as very serious. So the starting point is that there necessarily has to be a finding that the offending, particularly that of violence against women, must be found to be very serious. I think your contention in relation to nature and seriousness of his conduct is that any such finding needs to be tempered against the reality of his mental health symptoms.
MR BHUTANI: Precisely.
SENIOR MEMBER: That’s the essence of what you’re saying.
MR BHUTANI: That’s right. So that in considering or in characterising the seriousness and the nature of it, that needs to be the way in which it’s viewed.’27
Paragraph 8.1.1(1)(b)(i), (iii), and (iv)
37.This Applicant has not committed offences involving the causing of a person to become a party to a forced marriage.28 We are not aware of the Applicant’s commission of ‘any conduct of that forms the basis for a finding that [the Applicant] does not pass an aspect of the character test that is dependent on the decision-maker’s opinion.’29 Neither party is propounding any such conduct and we are satisfied that it is not relevant for any assessment of the nature and seriousness of the Applicant’s unlawful conduct. Further, we are not aware of any offences committed by the Applicant while in immigration detention. Accordingly, this
27 Transcript, p 75, lines 14-40.
28 Paragraph 8.1.1(2)(b)(i).
29 Paragraph 8.1.1(2)(b)(iii).
component of the Direction30 is not relevant for the purposes of assessing the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(ii)
38.It is a further unfortunate feature of this Applicant’s offending history that it contains four entries for convictions relating to ‘resist officer in execution of duty’. One of those four entries relates to a ‘call up’ (in December 2005) of a previous offence committed in the latter part of 2004. Be that as it may, the Applicant cannot escape the reality that his remaining three convictions in this realm squarely fall within the auspices of paragraph 8.1.1(1)(b)(ii) of the Direction. As such, pursuant to the language of the chapeau of paragraph 8.1.1(1)(b) that conduct is considered ‘serious’ by the Australian Government and the Australian community. We so find.
Paragraph 8.1.1(1)(c)
39.This sub-paragraph precludes us from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women or children;31
(2) acts of family violence;32 and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.33 That said, this Applicant does have serious and significant convictions (and sentences) for non- precluded offending. They may be stated thus:
·resisting a police officer in the execution of their duty for which the Applicant received custodial terms for three months (in September 2004), three months (called up offence in December 2005) and 130 days (in January 2006);
·property/larceny offending, for which he has received the following sentences:
oSeptember 2002, $400 fine plus payment of court costs;
oSeptember 2004, the imposition of a bond with an operative period of 12 months;
30 Paragraph 8.1.1(2)(b)(iv).
31 Direction, para [8.1.1(1)(a)(ii)].
32 Ibid, para [8.1.1(1)(a)(iii)].
33 Ibid, para [8.1.1(1)(b)(i)].
oSeptember 2004, the imposition of a head custodial term of six months;
oOctober 2004, the imposition of a bond with an operative period of 12 months;
oDecember 2005 (as part of a called-up offence), the imposition of a head custodial term of three months;
oJanuary 2006 (as part of a called-up offence), the imposition of a custodial term of 130 days;
oOctober 2006, the imposition of a two-month term of imprisonment, suspended upon him entering a bond with an operative period of 2 months;
oOctober 2007, the imposition of a head custodial term of 4 months;
oJanuary 2012, the imposition of a $200 fine plus payment of court costs of
$81;
oMay 2012, the imposition of a three month term of imprisonment;
oAugust 2014, the imposition of a four month term of imprisonment;
·drug offending:
oit suffices to record that the predominance of the Applicant’s offending in this realm has been punished by fines and/or his agreement to entering into bonds;
othat said, he has received respective custodial terms for drug offending in September 2004 (one month) and January 2006 (130 days).
40.It is well-established that imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished.34 This Applicant’s criminal history clearly demonstrates that not even taking into account the sentences he has received for the precluded offending, the remaining sentences that have been imposed on him are nevertheless of a sufficient magnitude such as to attract the operative effect of this paragraph 8.1.1(1)(c).
34 PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22].
41.We therefore safely arrive at a conclusion (and finding) that pursuant to this paragraph 8.1.1(1)(c), this Applicant’s offending must be found to be, at the very least, serious, more likely very serious.
Paragraph 8.1.1(1)(d)
42.The Applicant arrived here in October 1999. He has never left Australia. Yet while here, he has compiled an offending history that runs for the best part of a decade and a half that has seen him dealt with for the commission of some 60 offences (including called-up offences) that came before judicial sentencing authority on 23 separate sentencing occasions. Across his 13 and a half year sentencing history, the Applicant committed some 60 offences. This equates to something like 4-5 offences per year. It also equates to the Applicant finding himself before lawful authority for sentencing approximately twice a year across the totality of his offending history. We are satisfied that the Applicant’s offending has been frequent for the purposes of this paragraph 8.1.1(1)(d).
43.Is there a trend of increasing seriousness in the Applicant’s offending? To our minds, this question must be resoundingly answered in the affirmative. The initial phases of 13 and a half years of offending (that is, from 2002 until 2006) saw him commit offences that were dealt with by either non-custodial convictions or custodial convictions in the realm of several months’ duration. This dramatically changes as a result of his offending involving the flare gun in which he was sentenced by a NSW District Court in October 2007 to two separate head custodial terms of imprisonment of four years each. There followed, in July 2015, his conviction at a NSW District Court for the offence of assault with indecency committed at the Cumberland Hospital at Westmead for which he received a head custodial term of 32 months. We are satisfied that there is a clear and obvious trend of increasing seriousness in the Applicant’s offending.
44.For the purposes of this paragraph 8.1.1(1)(d) we are cumulatively satisfied that the Applicant’s offending has been both frequent and redolent of a trend of increasing seriousness. Thus the auspices of this paragraph are squarely engaged in favour of a finding that the Applicant’s offending must be found to be, at the very least, serious, more likely very serious.
Paragraph 8.1.1(1)(e)
45.This paragraph requires an analysis of the cumulative effect(s) of the Applicant’s repeated offending. A number of cumulative effects can, to our minds, be readily discerned from the Applicant’s history and pattern of offending. First, his offending has involved the commission of repeated acts of very serious violence against women. The conduct has been perpetrated with little or no regard for its consequences upon its female victims. It is not a stretch of the evidence to suggest that the flare gun incident could have resulted in significantly more serious and even catastrophic outcomes for its victim. Further, the appalling conduct towards the fellow-patient at the Cumberland Hospital could have easily ‘graduated’ from an assault containing an act of indecency into a circumstance of rape.
46.Second, the Applicant’s history is obviously demonstrative of a person who has failed to develop any measure of respect for the lawful authority governing the Australian community back into which he now seeks re-admission. He refuses to accept the lawful authority represented by a domestic violence order prohibiting him from going near, or otherwise engaging with, the person sought to be protected by that order. He does not respect the requirements of an order for bail, granting him the right to remain in the community in exchange for his meeting the terms of that bail. He does not recognise the lawful authority represented by police officers going about their business involving the protection of the community and otherwise ensuring that citizens adhere to the law. The Applicant does not understand and respect the rules and regulations governing the ownership, control and management of a motor vehicle on Australia carriageways whether it be something requiring him to be properly licenced to drive, to not drive while under the influence of alcohol and to otherwise observe the basic rules of the road.
47.Third, it is no exaggeration to suggest (and find) that this Applicant’s conduct across its almost decade and a half long history, has consumed more than its fair share of the community’s resources. The police have been compelled to both apprehend the Applicant for his unlawful conduct and to otherwise deal with him in terms of enforcing lawful instruments against him such as bail and orders for the prevention of domestic violence. The community’s health resources have been engaged as a result of having to deal with the treatment of injuries sustained by victims of his offending. The community’s judicial sentencing resources have been engaged on approximately 23 sentencing occasions in an effort to deal with his repeated and very serious offending. As well, the community’s
custodial resources have been applied to this Applicant’s custodial terms of imprisonment on nine separate occasions.
48.We are therefore satisfied that the abovementioned cumulative effects of the Applicant’s very serious and repeated offending strongly militate in favour of a finding that his offending has indeed been of a very serious nature.
Paragraph 8.1.1(1)(f)
49.To the best of our understanding of the material, we are not aware of any reference to the Applicant’s provision of false or misleading information to the Respondent’s Department. He has never departed Australia since his arrival in October 1999. He has therefore never had occasion to complete anything akin to an in-coming passenger card, or equivalent. There is no other document or circumstance in the material indicating a previous requirement on him to disclose his prior criminal offending such as, for example, an application for employment that may have required disclosure of any previous offences. In short, we are satisfied that paragraph 8.1.1(1)(f) is not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct.
Paragraphs 8.1.1(1)(g)
50.This paragraph requires an inquiry into whether a non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of that non-citizen’s migration status in this country. There are three instances arising in the material which squarely engage this particular paragraph. First, by a document dated 17 September 200835, the Applicant was given a ‘formal counselling letter’ from the Minister’s Department bringing the following to his attention that:
·the Department was aware of his criminal record;
·this record engaged the operation of s 501 of the Act;
·specifically, the Applicant visa could be the subject of a discretionary cancellation pursuant to s 501(2) of the Act;
35 Exhibit 7, pp 168-169.
·while the department was not giving immediate consideration to cancelling his visa he was nevertheless told, in the clearest of terms, that:
‘The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in fresh consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.’36
51.There is a signed acknowledgement of receipt of this letter by the Applicant appearing in the material.37 There is no question that he has not received this particular letter or did not understand its content. Second, the material contains a letter dated 16 July 2012 from the Respondent’s department, duly addressed to the Applicant.38 While the acknowledgement of receipt of this formal counselling letter is not signed by the Applicant,39 it was nevertheless forwarded to him by pre-paid registered post. There is no suggestion that he did not receive this letter or that he did not understand its content. This second formal counselling letter is expressed in largely identical terms to the first and contains a very similar concluding paragraph with, inter alia, the exception that in this second letter, the critical parts of the final paragraph are recorded in bold font and appears thus:
‘The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.’40
[Emphasis in original]
52.Third, there is another letter from the Respondent’s Department dated 20 May 2011.41 This letter contains advice about the Minister’s decision to not refuse the Applicant’s application for the visa which is now the subject of the instant proceeding. The Minister could have exercised the power inherent in s 501(1) of the Act and to have refused the grant of the visa to the Applicant. Instead, the Minister considered certain submissions by the Applicant under cover of an email dated 18 April 2011 and reached the following conclusion which
36 Exhibit 7, p 268.
37 Ibid, p 170.
38 Ibid, pp 163-164.
39 Ibid, p 165.
40 Ibid, p 163.
41 Exhibit 6, pp 300-301.
came with a further (and third) warning about the consequences of further unlawful conduct on the Applicant’s visa status to remain in this country:
‘You responded to the notice by email on 18 April 2011 and your comments were carefully considered and taken into account.
On this occasion, a delegate of the Minister has decided not to exercise their discretion to refuse your visa application under subsection 501(1) of the Act. However you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future visa applications may be considered and if so, the fact of this warning may weigh heavily against you. A copy of section 501 of the Act is attached for your information.’42
[Bold and non-underlined appears in original; bold and underlined is our emphasis]
53.There is no suggestion that the Applicant did not receive this letter or that he was not able to comprehend its content. It is difficult to understand what, if anything, the Respondent’s Department could have further done or written via these letters to put the Applicant on notice to cease and desist from his offending conduct so as to not imperil his Australian visa status. The documents run across a period of some four years and provide the Applicant with adequate and timely warning about how his offending could existentially harm his Australian visa status. He totally ignored the warnings appearing in each of the three letters and maintained a pattern of repeated and often very serious offending.
54.Having regard to the three abovementioned documents forwarded by the Respondent’s department to the Applicant we are of the view (and we find) that these documents squarely engage the auspices of this paragraph 8.1.1(1)(g). We are of the further view (and we find) that the content of these three letters militate very strongly of a finding that the nature and seriousness of this Applicant’s conduct must now be viewed as ‘very serious’.
Conclusion about the nature and seriousness of the Applicant’s conduct
55.We have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable paragraphs to which we have referred, we arrive at the view (and we find) that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as very serious.
42 Exhibit 6, p 300.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
56.Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
57.Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis
(a)the nature of the harm to individuals or the Australian community should the non- citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non- citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
58.Paragraph 8.1.2(2)(a) compels an assessment of the nature of the harm to individuals or the Australian community in the event of this Applicant engaging in further criminal or other serious conduct. In our view, it can be safely concluded that:
·were this Applicant to again involve himself in the commission of very seriously violent conduct towards a victim, especially a female victim in either a domestic context or in the context of a vulnerable situation for that victim, his offending would have very serious adverse consequences on that victim. We repeat: it is not a stretch
of the evidence to suggest that significantly more serious, and even fatal, consequences could have arisen from the Applicant’s conduct with the flare gun. It is not a stretch of the evidence to suggest that his conduct at the Cumberland Hospital could have easily evolved into the circumstances of an appalling rape on that particular victim;
·were he to again commit offences against the property of others, those victims would suffer materially quantifiable loss. Members of the community are entitled to lawfully acquire and enjoy their property. Conduct that interferes with those rights should not be countenanced or tolerated. To unlawfully interfere with another person’s right of enjoyment of a particular thing they have lawfully acquired is a very serious matter striking at the heart of the values of the Australian community;
·any resumed or repeated refusal by this Applicant to follow the dictates of the lawful authority represented by either police officers going about their business and/or lawfully made documents compelling the Applicant to do, or refrain from doing something, would result in the Applicant yet again disrespecting the lawful authority governing the Australian community back into which the Applicant now seeks re- admission. Citizens and non-citizens of this country respectively enjoy either (1) the right to remain in the community or (2) a right to remain in the community without the risk of deportation on the basis that they observe this country’s laws and regulations;
·if this Applicant returns to the Australian community and resumes a pattern of non- compliance with his stipulated medication to control and manage his psychological symptomatology (including the requirements of stipulated holistic regimes of treatment as most commonly enshrined in community treatment orders), the community’s law enforcement, health care, judicial sentencing and corrections/incarceration resources would again be engaged and unduly consumed;
·were the Applicant to again assume control of a motor vehicle on an Australian carriageway and fail to observe Australian laws and regulations governing that activity, other road users could become the subject of serious and significant injury with even fatal consequences.
59.We are therefore satisfied (and we find) that were this Applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be very serious and would
likely involve physical, psychological and quantifiable economic harm to its victims including, quite conceivably, harm to a catastrophic level.
60.Extreme violence of the type perpetrated by this Applicant against his female victims is not conduct that the Australian community should be reasonably expected to tolerate. To our minds, this type of violence – perpetrated under the disorienting influence of unresolved psychotic symptoms – makes it all the more dangerous. As such, we find that such conduct, if repeated, either in identical or similar terms, and the harm that would result from it is so serious that any risk of its re-commission is totally unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
(i) Information and evidence on the risk of the Applicant re-offending
Evidence of the Applicant
The Applicant’s written statement made on 3 February 2023
61.In his abovementioned written statement, the Applicant makes reference to an intention to have ‘no more trouble in my life’. He talks about adhering to Australian laws and of having no intention of again being removed from the Australian community. He also speaks of following the requirements of his Guardian insofar as adherence to his regime of medication is concerned:
‘I no want no more trouble in my life. I will follow rules until I die. I no ever want to come back here. Guardian tell me to take pills, I do. Guardian tell me to work, I do but after two or three months rest maybe. Guardian tell me where to live, I do but my things are in Auburn. I am no trouble for long years now. No more trouble for [Applicant name redacted].’43
62.This written statement also contains a claimed resilience towards provocation and that he has otherwise learnt lessons from the consequences of his past offending that was committed a ‘…Long long time ago…’:
43 A4, Applicant’s statement, p 4, para [18].
‘If someone try to hit me in Auburn I do nothing. I go away, I stay back and go to house. No more trouble for [Applicant]. Long long time ago lots of trouble from [Applicant]. I no remember everything but I remember lots of thing happened long time ago from the voices. Trouble make me tired, I not trouble for long time now. Trouble will take [Applicant] back to camp. No way trouble anymore.’44
The Applicant’s evidence-in-chief
63.The Applicant’s evidence-in-chief was of relatively short compass. He confirmed that he was well and truly tired of his seven year removal from the Australian community in either prison or immigration detention. He made reference to ‘taking pills’ for his psychotic symptoms and was asked how those pills made him feel. He responded thus:
‘MS BONES: Thank you. How do you feel after you take the pills? INTERPRETER: Nothing.
MS BONES: Okay. Do the pills help you? INTERPRETER: Yes.’45
64.He was asked about where he would live if released from immigration detention and responded thus:
‘MS BONES: Okay. If you are released from the camp, where do you want to live? INTERPRETER: In Auburn.
MS BONES: Okay. What do you like to do in Auburn? INTERPRETER: Nothing.’46
65.He was also asked about his Guardian and the extent to which the Guardian could assist him with accommodation upon a return to the community:
‘MS BONES: Okay. I don’t have many more questions. Just a few more. Okay. Do you know about your guardian?
INTERPRETER: Yes.
MS BONES: What will your guardian help you with? INTERPRETER: I think he finds accommodation for me (indistinct). MS BONES: Great. Will you see a doctor in Auburn?
INTERPRETER: Yes.
44 A4, Applicant Statement, p 5, para [24].
45 Transcript, p 18, lines 24-30.
46 Ibid, lines 32-39.
MS BONES: Is it okay if the guardian helps you to see a doctor? INTERPRETER: I don’t mind.
MS BONES: Okay. What would you do if there is trouble in Auburn? INTERPRETER: Trouble like a fight, or (indistinct).
MS BONES: It’s a word he’s used, so - yes, I guess fight is fine. INTERPRETER: Okay. Nothing.’47
Cross-examination of the Applicant
66.From the perspective of recidivist risk, the first question the Applicant was asked in cross- examination involved an inquiry into the last time that he took cannabis. The Applicant responded with: ‘…10-11 years ago.’48 He was challenged on this answer and it was suggested to him that there was information before the Tribunal which indicated that he had taken cannabis a lot more recently. He was asked to respond to that suggestion and, particularly, whether he had anything to say towards it. The Applicant replied with: ‘nothing’.49
67.The Applicant was then taken to page 79 of Exhibit 7 and was shown a detention centre incident report dating from March 2020. This incident report noted the following: ‘Detainee [the Applicant] was seen holding a silver spoon shaped implement, a small silver coloured oval shaped item and what appeared to be cigarette in the laundry area of unit 7.’50 After this quote was read to the Applicant, there followed this exchange between him and the Respondent’s representative:
‘INTERPRETER: Yes, it was end of March, okay, it belonged to a friend of mine. MR ESKERIE: And did you use it to take drugs?
INTERPRETER: No.’51
68.The Applicant was then taken to a document on the letterhead of the International Health and Medical Services (‘IHMS’) dated 23 September 2020. Specifically, he was taken to the following portion of that IHMS document: ‘There have also been concerns about ongoing
47 Ibid, lines 46-47; p 19, lines 1-22.
48 Transcript, p 20, line 32.
49 Ibid, line 37.
50 Exhibit 7, p 79.
51 Transcript, p 21, lines 4-9.
drug use in VIDC and periodically he has agreed to a UDS which on occasion has been positive. In 2019 the foil in his hair was tested when he was admitted to hospital and this tested positive for heroin.’52 [Our emphasis]. The Applicant was asked whether he had agreed to the testing referred to in this quote and whether he accepted that the testing proved positive. He responded thus:
‘MR ESKERIE: And it says that sometimes you agreed to a test and the test was sometimes positive. Is that true?
INTERPRETER: Yes.
MR ESKERIE: And it says in 2019 they found some foil in our hair that tested positive for heroin.
INTERPRETER: They found foil?
MR ESKERIE: Foil in his hair that tested positive for heroin. INTERPRETER: Foil, you mean like - in 2019. I don’t know.’53
69.The Applicant was then asked about the last time that he used heroin. He was coy in his response. He was likewise coy when asked a similar question about his use of marijuana:
‘MR ESKERIE: When did you last use heroin? INTERPRETER: I don’t use.
MR ESKERIE: But when - do you remember when, approximately how many years ago you last used heroin?
INTERPRETER: I never use.
MR ESKERIE: You never used heroin? INTERPRETER: No.
MR ESKERIE: Have you ever used marijuana? INTERPRETER: Yes.
MR ESKERIE: You’ve used marijuana at the camp as well? INTERPRETER: Two - three times.’54
70.Finally, the Applicant was asked about the mental health support and treatment he had been receiving while in immigration detention. In particular, he was asked about whether he had missed any appointments associated with that treatment. His response was both incoherent and coy:
52 Exhibit 6, p 157.
53 Transcript, p 21, lines 29-41.
54 Ibid, line 47; p 22, lines 1-19.
‘MR ESKERIE: All right. I think we will leave this there. Bear with me.
Now, you’ve been seeing a psychiatrist, a doctor, for mental health in the camp, is that right?
INTERPRETER: Yes.
MR ESKERIE: And the papers before the tribunal show that on a lot of times you have not been going to your appointments. Is that true?
INTERPRETER: I attended by a few.
MR ESKERIE: Okay. Is it the case that usually they come to you to give you the medication, at camp?
INTERPRETER: No, I go to the camp.’55
Evidence-in-chief of Ms Julie Marama
71.Ms Julie Marama is employed by the New South Wales Trustee and Guardian as a Principal Guardian. Ms Marama provided both oral and written56 evidence to the instant Hearing. In her oral evidence-in-chief Ms Marama explained the legal functions that a Public Guardian has. The first of those functions she described as the ‘accommodation function’. According to her evidence:
‘MS MARAMA: So the accommodation function, it allows the Public Guardian to determine where persons such as CRRN will live, and that includes making decisions about holidays or overnight stays, respite, permanent accommodation. And so we - how we make those decisions is we would receive a proposal, and say that could be from a support coordinator who is appointed by the Public Guardian through NDIS. They would look for the most suitable and appropriate accommodation option for that individual. They’d complete a proposal for us. We would then go about, I guess, looking at the proposal and ensuring that it is considered in his best interests and welfare, and then we can make the decision, and that’s a legal binding decision whereby he must stay there.’57
72.Ms Marama described the type of accommodation that the Applicant could expect to go to in the event of a return to the community. She described it as ‘supported independent living’ and she particularized it as follows:
‘MR BHUTANI: And in a bit more detail, what does that look like?
MS MARAMA: So it can be a house or it can be a set of villas that have 24/7 support. There is a lot more to this. It can - the house or the type of property can - depends on reports from occupational therapists, from behaviour support clinicians. It
55 Transcript, p 22, lines 21-35.
56 Exhibit 2, Public Guardian letter of support.
57 Transcript, p 60, lines 15-25.
depends on the client’s complexity. There may be restrictive practices in place at a property whereby that allows the property to have locked doors. So say similar to a dementia-specific unit.’58
73.The next legal function of the Public Guardian that Ms Marama spoke about involved the making of healthcare decisions for an affected person. In terms of how that function would be discharged in relation to the Applicant, she said this:
‘MR BHUTANI: Can you describe what that could entail for CRRN?
MS MARAMA: Yes, so it could entail him accessing any type of health service. It also allows us to make decisions about doctors who treat CRRN requesting and exchanging health records. We can also request health assessments or whatever assessments be undertaken. So, yes, if we find that maybe a practitioner is engaged and it’s not considered in the client’s best interests and welfare, then we can change that doctor. That’s just one example.’59
74.The next legal function of the Public Guardian described the provision of legal services/support to an affected person. She described that function thus:
‘MR BHUTANI: …The last function that I wanted to get some further information about is the under the heading “Services”. Can you describe that in a bit more detail as to what that could entail?
MS MARAMA: Yes. Sure. So that function allows the Public Guardian to make decisions about what support services CRRN may require. And that function in terms of CRRN is related to NDIS. So we make decisions and we provide consent to any service providers that are funded under the NDIS. So we can appoint support coordinators, we can appoint occupational therapists, behaviour support therapists, psychologists, counselling. It depends on what CRRN’s funding entails, but we provide consent for all of that.’60
75.Ms Marama was then taken to a series of hypothetical situations and asked to explain how the Office of the Public Guardian would intervene and/or assist the Applicant. The first of those hypothetical situations involved a circumstance where it became known to the Public Guardian that the Applicant was engaging in taking illicit substances. In those circumstances Ms Marama said:
‘We would get the support coordinator to refer him to some type of alcohol and drug counselling or psychology if available. We can also arrange if community mental health is engaged. We can also arrange and advocate for him to receive counselling.’61
58 Ibid, lines 37-43.
59 Transcript, p 61, lines 7-13.
60 Ibid, lines 15-24.
61 Ibid, lines 35-39.
76.The second hypothetical situation involved the Public Guardian being made aware of the Applicant not complying with his psychotropic medication. She responded thus:
‘MS MARAMA: So we could ask or advocate for a CTO with mental health, or we would seek the functions of overriding objection. So that’s another function that allows us to override a person’s objection to medication.
MR BHUTANI: Just explain that in a bit more detail. how does that practically work, to go about seeking that overriding objection power?
MS MARAMA: Yes. Sure. So we can get the New South Wales Ambulance or the police force to assist in administering or he will be taken to a mental health facility for that to be undertaken.’62
77.The third and final hypothetical situation put to Ms Marama involved a circumstance where it became known to the Public Guardian that the Applicant was not present at his accommodation:
‘MS MARAMA: So he’s gone missing? MR BHUTANI: He’s gone missing, yes?
MS MARAMA: Okay. So we - we can’t - so what we - in those instances - this happens all the time with us, so we would ask the last person who has seen CRRN to report to police that he has gone missing or file a missing person’s report. If we do have - so the other function I referred to is the authorise others. So that function, if let’s say he’s found and he is refusing to go back to where the Public Guardian has actually approved for him to stay, we can engage with again New South Wales Police and the Ambulance to forcefully take him from wherever he is and take him back to the place - accommodation approved by the guardian.’63
78.Finally, Ms Marama was asked about the prospects of the Applicant successfully applying to the National Disability Insurance Scheme (‘NDIS’) for support and assistance. She is of the belief that he would be successful in any such application.64 She was also asked about what type of supports and funding he could receive through the NDIS in the event of a return to the community, and she responded in these terms:
‘MR BHUTANI: And those similar clients, what type of funding and supports do they receive through the National Disability Insurance Scheme?
MS MARAMA: Do you know what? I couldn’t tell you that off the top of my head because they all do receive such different funding. It varies dependent on, I guess, the complexity of that client.
62 Transcript, p 61, lines 43-46; p 62, lines 1-5.
63 Ibid, lines 8-19.
64 See transcript, p 63, lines 1-2.
MR BHUTANI: Without going into the specifics of the funding or the dollar amounts or anything like that, what are some of the supports that they might receive in a general sense?
MS MARAMA: Okay. So support coordination. Behaviour support. Allied health services, so that’s behaviour support, occupational therapy. For CRRN we would be seeking a supported independent living funding as well, so that’s the - what I referred to before, the 24/7 support environment. There could be other - in fact, there could be a travel allowance, so that would be allowing support workers to take him from his residence and attend if he needs medication, attend those appointments, attend any psychiatry appointments, any counselling. If there was anything that he wanted to do in the community, then they would support him with that.’65
Cross-examination of Ms Julie Marama
79.Initially, Ms Marama was taken to the current Guardianship Order made on 29 October 2021 and she agreed it has an operative period of two years. She also agreed it is a limited Guardianship Order meaning the functions Ms Marama has pursuant to that Order are limited to those functions described within it. She also agreed that it is a condition of any exercise of the powers of the Public Guardian on behalf of this Applicant that reasonable steps must be taken to ensure the Applicant understands the issues and has, to the extent that he can, expressed his views before the Public Guardian can make any significant issues on his behalf.
80.Ms Marama confirmed her familiarity with the Guardianship Act of NSW.66 She was also taken to s 21A of the Guardianship Act and agreed with the proposition that the current Guardianship Order applicable to this Applicant does not empower the Public Guardian to exercise any of the coercive functions stipulated in s 21A:
‘MR ESKERIE: And so you would be familiar that there’s a section, section 21A, the gist of which is that a guardianship order may specify that the guardian or someone else is empowered to take such measures or actions as a specified in the order so as to ensure that the person in the guardianship complies with any decision of the guardian in the exercise of the guardian’s functions. So basically it allows an order to say that in addition to making decisions you are also empowered to take the following steps to ensure that the person you are the guardian of complies with those decisions. Is that your understanding as well?
MS MAMARA: That’s right.
65 Transcript, p 63, lines 7-23.
66 Guardianship Act 1987 (NSW) (‘Guardianship Act’).
MS ESKERIE: Yes, and this order does not contain any of those measures. That’s correct, isn’t it?
MS MAMARA: Contains any of what measures?
MS ESKERIE: Any of those measures to ensure that CRRN complies with any decisions you make?
MS MAMARA: So are you referring to coercive functions?
MS ESKERIE: Well, that’s what 21A says. I’m not sure what typically are the sorts of measures but one might assume that coercive functions are part of them?
MS MAMARA: They could be.
MS ESKERIE: Yes, but no such measures are in this particular order? MS MAMARA: Not currently, no.’67
81.Ms Marama was then taken to the concluding part of her abovementioned letter of support dated 11 January 2023 and, in particular, the words in that letter that say:
‘…the Public Guardian will advocate for [the Applicant] to access community support services available to him, which may include mental health and drug and alcohol services as well as NDIS funded supports. Such assistance will promote [the Applicant’s] wellbeing, encourage prosocial behaviour and assist with community reintegration’.68
82.Ms Marama conceded that none of the immediately preceding quoted comments in the letter comprise coercive measures and that the Public Guardian would have to make application to the relevant Tribunal to obtain such powers:
‘MR ESKERIE: And, again, none of those are really coercive measures; they are steps that you will be taking as part of your decision-making function under the order. Is that right?
MS MAMARA: Not necessarily, no.
MR ESKERIE: Can you expand on that?
MS MARAMA: If required we can seek the coercive functions and that would be by way of seeking the coercive functions in the order.
MR ESKERIE: So you would seek it from the tribunal and then the tribunal has to decide whether it’s appropriate to give you those powers?
MS MARAMA: That’s right, if it’s required.’69
67 Transcript, p 64, lines 18-38.
68 Exhibit 2, Public Guardian Letter of Support, p 8 of 8.
69 Transcript, p 65, lines 10-18.
83.Ms Marama was then taken to a specific clinical record in the IHMS documents prepared by the abovementioned Dr David Lienert, psychiatrist. Specifically, she was taken to the following part of that clinical record:
‘Julie informed me that progress was being made with regards to [the Applicant’s] immigration matters. ; A lawyer is now engaged. ; Julie explained that she does not have "over-ride" functions with the Guardianship order so she can encourage but not force treatment. ; On hearing my account of current mental state and behavior [sic], she doubted that NCAT would grant such functions. ; She commented that on her last discussion with [the Applicant] he seemed quite talkative and friendly. ; I explained that it is a similar issue with applying for a CTO – hard to argue when there are not current risks.’70
84.Ms Marama recalled the discussion with Dr Lienert referred to in the above clinical note. She conceded that she did not have the ‘override functions’ referred to in the clinical note and that she could otherwise encourage but not force treatment upon the Applicant:
‘MR ESKERIE: And is it correct that based on the current orders that the tribunal has seen appropriate to make you do not have those override functions, and you can encourage but not enforce treatment?
MR MARAMA: So I would have had to have applied for the override function, and like I just said before, because he’s in detention there was no need for me to apply for that override function. And I highly doubt that the tribunal would have given that to me considering that following that he was actually made subject to a CTO and that’s what David applied for.’71
85.Ms Marama was then taken to the several hypothetical scenarios that were put to her during her evidence-in-chief. She agreed that the operative effect of the current Guardianship Order was of limited benefit in terms of actually preventing or stopping the Applicant from taking illicit drugs:
‘MR ESKERIE: All right. Now, you were asked earlier about a number of scenarios and what the guardian might do in those scenarios. You’ll recall that?
MS MARAMA: Yes.
MR ESKERIE: And one of them was in the event that he consumes drugs, and I think you said that you would speak to the support coordinator and organise therapy and other supports of that type. Is that right?
MS MARAMA: M’mm.
MR ESKERIE: In terms of actually stopping him from taking medication would it be correct that really what’s at your disposal is to call the police?
70 Exhibit 2, IHMS Records, p 52 of 232.
71 Transcript, p 66, lines 23-30.
MS MARAMA: Sorry, was that stopping him from taking medication or stopping him from taking drugs?
MS ESKERIE: yes
MS MARAMA: We can’t stop him from taking that.’72
86.In terms of the hypothetical situation where it came to the attention of the Public Guardian that the Applicant was not being compliant with his psychotropic medication, Ms Marama conceded that under a CTO73 only medically qualified people treating the Applicant would be able to enforce his compliance with a medication regime regardless of any involvement of the Public Guardian in the affairs of the Applicant:
‘MR ESKERIE: Yes. All right. Now, we’ve seen in CRRN’s history that there have been a number of occasions where he has been scheduled following a particular psychotic episode, and given medication. We also know, as you do, that there have been CTOs in place to essentially enforce his compliance with the psychotic medication. Those steps would be available to the medical team either in the community or in detention regardless of your involvement. That’s correct, isn’t it?
MS MARAMA: That’s right.’74
87.Ms Marama was then asked about the nature of her working relationship with the Applicant and she described him as always being welcoming of her and whatever assistance/interventions that she could provide in the name of the Public Guardian. She said in cross-examination that he had never been irate with her during any conversations between him and her. Consequent upon that evidence she was taken to a further IHMS clinical record compiled by Dr David Lienert and made on 23 February 2022. In this clinical record Dr Lienert quotes, in full, an email he received from Ms Marama on 18 February 2022. The salient part of that quoted email is this:
‘Hi David,
Thanks for your email.
I had a meeting with [the Applicant] via AVL 13/01/2022, when I attempted to speak with him about medication compliancy and MH appointments he got quite irate, stating he ‘is [sic] ok, takes his medications and will speak with his doctor’, [sic] he then terminated the visit by walking out of the room.’75
72 Transcript, p 66, lines 32-45.
73 Community Treatment Order
74 Transcript, p 67, lines 7-13.
75 Exhibit 2, IHMS Records, p 45 of 232.
88.After having the email read to her Ms Marama accepted the accuracy of its terms following which this exchange ensued between her and the Respondent’s representative:
‘MR ESKERIE: So that’s somewhat at variance with the description of the conversations that you’ve just given, isn’t it?
MS MARAMA: Well, he didn’t get irate with me. He was still welcoming, he was still pleasant with me. It was more about him and his compliance in relation to medication, and that he would sort it out.
MR ESKERIE: Yes, see when I asked you about that, though, I didn’t say whether he got irate with you. I just asked whether he got irate?
MS MARAMA: Okay. Sorry, then, I misunderstood your question; I thought you were talking about him getting irate with me.’76
89.Finally, Ms Marama was taken to the final page of her abovementioned letter of support and, in particular, to the following sentence ‘The Public Guardian is of the view that with appropriate support, [the Applicant] has good prospects of being socially habilitated.’77 During cross-examination, Ms Marama conceded that these comments had been made by her as an employee of the Public Guardian and that she did not hold any qualifications in psychiatry nor any other medical qualifications on which to base her assessment of the Applicant’s prospects of social habilitation.78
(ii) Evidence of the Applicant’s rehabilitation achieved by the time of the Decision
Evidence of Dr Gerald Chew
90.As mentioned earlier, Dr Gerald Chew is a forensic psychiatrist who provided both oral and written evidence to the Hearing. Turning firstly to his written evidence, there is before the Tribunal a report of some 14 pages prepared by Dr Chew and which is dated 10 January 2023. In his written report, Dr Chew took a life-history from the Applicant and recorded that history in his report.79 Dr Chew also recorded a psychiatric history from the Applicant. In terms of that particular history, Dr Chew noted the following:
‘PSYCHIATRIC HISTORY
[the Applicant] was first diagnosed with Schizophrenia in 2002 on admission to Blacktown Hospital. He has had multiple psychiatric hospitalisations with a
76 Transcript, p 68, lines 12-20.
77 Exhibit 2, Public Guardian Support Letter, p 8 of 8.
78 See Transcript, p 68, lines 22-44.
79 Exhibit 2, Report of Dr Chew, pp 3-4, paras [10]-[15].
consistent diagnosis of Schizophrenia. He has previously been treated with long acting depot antipsychotic medication.
He has long standing cognitive impairment. In 2006 a psychologist administered part of the Kaufman Brief Intelligence Test and he was assessed as having a borderline intellectual disability falling in the bottom 3% of the population in terms of intellectual functioning.
In October 2020 a Public Guardian was appointed with functions relating to medical care, accommodation and support services. He was found by NCAT to be unable to make decisions because of him chronic mental illness and cognitive impairment.’80
[Capitalized bold heading in original; remaining bold is our addition]
91.In terms of the Applicant’s medical history, Dr Chew noted that the Applicant has no significant co-morbid medical illness. In terms of substance use history, Dr Chew recorded that the Applicant told him that he had not used illicit drugs or alcohol during his time in immigration detention, but that (1) he used hashish as a child soldier; and (2) during his time in Australia he used cannabis and alcohol heavily in the past. Dr Chew noted that the Applicant was on a current dosage of 10mg of olanzapine, administered to him at night. Dr Chew also recorded a brief personal history from the Applicant and noted the following: ‘He has family in Australia but has lost contact. He has no contact with family overseas and suspects that there is no family in Afghanistan.’81
92.Dr Chew summarised his understanding of the Applicant’s criminal history. In terms of his mental state examination and opinion that there was nothing remarkable in his psychopathy on the day of the consultation with him, Dr Chew thought that the Applicant: ‘…had good insight today into his issues today and was motivated to engage in treatment and abstain from alcohol and drugs.’82
93.In terms of a concluded opinion, Dr Chew said the following:
‘OPINION
[the Applicant] has a primary diagnosis of Chronic Schizophrenia. He has presented with psychotic symptoms necessitating treatment and psychiatric hospitalisation dating back to 2002. He likely had developed Schizophrenia in the years leading up to his first admission. He has an additional diagnosis of Substance Use Disorder – Cannabis in particular.
80 Ibid, paras [16]-[18].
81 Exhibit 2, Report of Dr Chew, p 5, para [26].
82 Ibid, p 6, para [31]
He was suffering from these conditions at the time of his offending behaviours. His cognitive difficulties prevent him recalling much detail around the circumstances of the offending.
His offending behaviour appears to be very linked to his mental health and substance use. It appears that his offending has generally been directly caused by or significantly contributed to by his Schizophrenia. At the time of the offending he was likely experiencing psychotic symptoms which have impacted his judgement and behaviour. I note that a significant charge was while he was an inpatient in a psychiatric hospital suggesting that it is probable that he was psychotic at the time.
MR BHUTANI: Yes.
SENIOR MEMBER: And on that basis, it’s difficult - not impossible but it’s difficult to allocate weight to links he may have in the community.
MR BHUTANI: Yes.
156 Transcript, p 94, lines 34-46; p 95, lines 1-5.
157 Ibid, p 119, lines 29-30.
158 Exhibit 5, p 17, para [69].
SENIOR MEMBER: Not at all a criticism of his case, but there’s no domestic partner at the back of the court.
MR BHUTANI: Certainly.
SENIOR MEMBER: There is no friend or supporter or support person at the back of the court. And again, not to be critical at all, but what can you tell me about his links to the community, Mr Bhutani?
MR BHUTANI: The depth of the links are limited, but it’s worth noting that he arrived in 1999 at the age of 21. A significant amount of time now. It’s also worth noting that he has previously held pro-social employment roles. He’s worked in a poultry farm, the evidence establishes. He worked at a car wash, the evidence establishes.
So there are these positive pro-social links, but I wouldn’t cavil with that - that characterisation that his condition has caused him to - has prevented his ability to form deeper personal ties comparatively.’159
210.Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant’s links to the Australian community. There are two factors which we must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. We will consider each in turn.
(1) Strength, nature, and duration of ties
211.With reference to the first part of this Other Consideration, three elements require consideration. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s ‘immediate family members’ where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any ‘other ties’ the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other ‘family or social links’ the Applicant may have with people who have an indefinite right to remain in Australia. We will address each component in turn.
i. Impact of non-revocation on the Applicant’s immediate family
212.The Applicant contends in his Personal Circumstances Form that he has three adult children but it is not clear from the evidence whether those adult children are in Australia or New Zealand. None of those adult children have provided a statement detailing any link the
159 Transcript, p 95, lines 16-46.
Applicant may have with them. The material confirms either the total absence or, at best, sparse contact between him and these three adult children:
·in sentencing remarks dating from July 2015, the Court noted ‘There is nothing in the material to indicate what contact he has had with his former partner and children since serving a sentence that was commenced in October 2006.’160
·in sentencing remarks dating from October 2007, the Court said the following:
‘In 2000, the offender began a relationship with a woman in Sydney and had a number of children with her. He then had another relationship with a woman and they had another child. Unfortunately he now has no contact with either of the women or any of his children.’161
·in the Reasons for Decision dating from October 2020 arising from the Guardianship application in respect of the Applicant it was noted that ‘He has four children from two relationships and is not in contact with his ex-partners or children. [The Applicant’s] siblings and parents live in Afghanistan.’162
213.The material contains reference to the Applicant possibly having a brother in Australia. Referring again to the sentencing remarks of July 2015, the Court noted that the Applicant ‘…came to Australia on his own in 1999, going first to Brisbane. His older brother came to Australia, but went to Adelaide and there is no evidence of any meaningful contact with him in recent times.’163 In a psychiatric report dating from 21 March 2011, it is noted that the Applicant ‘…has 8 siblings. One of his brothers lives in Melbourne, but they do not have much contact.’164
214.As was significantly noted by the Respondent in its SFIC, the Public Guardian was appointed to the Applicant’s affairs on the basis that he did not have any family connections in Australia who could act as his guardian.165 The abovementioned Reasons for Decision for appointment of a Guardian notes the following: ‘Dr David Lienart [sic] states that to his
160 Exhibit 7, p 43.
161 Ibid, p 53.
162 Ibid, p 113.
163 Ibid, p 39.
164 Ibid, p 155.
165 Exhibit 5, p 17, para [70].
knowledge, [the Applicant] does not have any family connections or friends in Australia who could act as his guardian.’166
215.Having regard to the virtual absence of any contact between the Applicant and (1) his adult children (assuming they are in Australia); (2) his former partners and biological mothers of his children; and (3) his older brother in Australia, plus the fact that the remainder of his family appear to be in Afghanistan, it is very difficult to allocate any measure of weight pursuant to this component of Other Consideration (d) in favour of setting aside the decision under review. The unfortunate reality for the Applicant is that his psychopathy and issues with illicit substances which have caused him to very seriously offend in Australia have, in turn, cast him as a social loner in the community.
ii. Strength, nature, and duration of “other ties” – length of residence
216.There are two necessary enquiries referable to the extent of the Applicant’s ‘other ties’ to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant first came to Australia in October 1999 and has never left Australia. It can be found that he has spent something like a quarter of a century in Australia, representing 25 years of his 45 year life thus far. It can be safely found that the Applicant has spent a long period of his life in this country.
217.We will now make reference to the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction. The first of those compels us to allocate less weight if the Applicant began offending soon after arriving here. We have found that he commenced residing in Australia on a permanent basis in October 1999. His first conviction in an Australian court occurred in January 2002, which is less than two and a half years after he arrived here. A period of two and a half years post-arrival should be construed as being ‘soon after arriving in Australia’. The first of these two tempering sub-elements does not assist the Applicant and, if anything, weighs against him.
218.The second of the two tempering sub-elements at 9.4.1(2)(a) of the Direction compels an assessment of the extent of the Applicant’s positive contributions to the Australian
166 Exhibit 7, p 119, para [25].
community. As we have mentioned earlier, there is reference in the Applicant’s SFIC that he has engaged in remunerative employment in Australia.167 The material contains scant reference to any community contributions. The Applicant has, via whatever employment he has engaged in, made some measure of contribution to Australia. This second tempering sub-element moderately militates in the Applicant’s favour pursuant to this Other Consideration (d) for the setting aside of the decision under review.
219.While the first tempering sub-element does not assist him, the second one confers a slight and not determinative level of weight in favour of setting aside the decision under review.
iii. Strength, nature, and duration of “other ties” – family and other social links
220.As conceded by the Applicant’s representative during closing submissions, the unfortunate reality is that his mental health symptomatology and consequent very serious offending history has cast him into the role of a social loner. As noted in the Applicant’s SFIC:
‘It is submitted that the Applicant’s links to the Australian community should not be given lesser weight based on the commencement of his offending which approximately coincides with the early stages of his schizophrenia symptoms.’168
221.Having regard to the virtual absence around the Applicant’s ‘other ties’ to (1) extended family members; and (2) social links, we are of the view (and we find) that the strength, nature and duration of the Applicant’s ties to any links does not carry any level of weight in favour of setting aside the decision under review.
(2) Impact on Australian business interests
222.Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, ‘Australian business interests’. We are of the view (and we find) that this component of Other Consideration (d) is not relevant.
167 Exhibit 1, p 4, paras [17]-[18].
168 Exhibit 1, p 24, para [96].
Weight allocable to Other Consideration (d): links to the Australian community
223.With reference to the first part of this Other Consideration (d) (the strength, nature and duration of the Applicant’s ties to Australia), we are of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a slight and not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community confers a slight and not determinative, level of weight in favour of setting aside the decision under review.
Further Other Consideration (e): prolonged detention
Indefinite detention in the context of this case
224.It is necessary for this Tribunal to take into account any legal consequence arising from its decision relating to the Applicant’s visa. One specific consequence of our decision could involve the Applicant’s prolonged or indefinite detention. This consequence must be considered as a separate consideration.169 Section 189 of the Act provides that a non- revocation outcome would result in the Applicant’s continued detention until his removal. Therefore, it can be accepted that a non-revocation outcome in this application could very well extend the Applicant’s time in an immigration detention facility.
225.If this Tribunal were to affirm the decision under review, the likely reality will be that the Applicant will remain in immigration detention until another event ends that detention. In terms of such an ‘event’ paragraph 9.1(3) of the Direction provides three possible alternatives to either the Applicant’s refoulement170 or his ongoing detention. They are:
·removal to another country; or
·the Minister exercising their personal discretion under s 195A of the Act to grant the Applicant, ‘another visa’; or
169 VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [16].
170 Which, of course, will nor occur. The Applicant has been found to be owed protection obligations and he will thus not be refouled to Afghanistan.
·the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.
226.While it may be found that (1) a possible outcome for the Applicant from this application is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of revocation, the weight attributable to this Other Consideration (e) should, in our view, be tempered for a couple of reasons.
227.This is so for a couple of reasons. First, paragraph 9.1(3) of the Direction relevantly provides that if the Applicant is able to apply for a protection visa, he would not be liable to be removed while such application is being processed and determined.171 Given that a ‘protection finding’ has been made, the Applicant would not be liable for removal unless and until any one of the following occur:
·the decision grounding the protection finding is quashed or set aside; or
·pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of s 197C(3) of the Act applies; or
·the Applicant asks the Minister, in writing, to be removed.
228.Here, the protection findings made in respect to the Applicant means he can apply for a protection visa. The visa currently held by the Applicant is not a type of protection visa. Given that it was this non-protection type visa that was cancelled, it means that the bar in s 48A of the Act does not apply to him and he is able to apply for a protection visa in the event this Tribunal does not set aside the decision under review.
229.Second, as outlined earlier, protection findings have already made in relation to this Applicant. Therefore, were this Tribunal to affirm the decision under review, the Applicant would most likely remain in immigration detention until:
·he applies for and is granted a protection visa; or
171 Section 198(5A) of the Act.
·one of the events in s 197C(3)(c) occurs; or
·the Minister exercises their personal powers to grant another visa to the Applicant; or
·the Minister makes a resident determination in respect of the Applicant.
230.If the Applicant succeeds in obtaining a protection visa, then his time in detention will end. If he is unsuccessful then it must be accepted that a legal consequence of this Tribunal affirming the decision under review is that the Applicant will be detained for an unknown period or until one of the three abovementioned alternatives at paragraph 9.1(3) of the Direction occur. If none of those three alternatives occur, the Applicant may well remain in immigration detention without a fixed end point. We are of the view (and we find) that this Other Consideration (e) carries a heavy, but not determinative, level of weight in favour of restoring the Applicant’s visa status to remain here.
Would the Applicant’s ‘indefinite detention’ breach Australia’s international obligations?
231.A contention is put on behalf of the Applicant that keeping the Applicant in prolonged or indefinite detention would cause Australia to breach its international obligations. The Applicant specifically contends that Articles 7 and 9 of the International Covenant on Civil and Political Rights (‘ICCPR’) and Articles 14 and 15 of the Convention on the Rights of Persons with Disabilities (‘CRPD’) would be breached.
232.The conditioning factor for the extent to which this Tribunal must take into account any propounded breach of Australia’s international obligations pursuant to treaties such as the ICCPR and CRPD was established by the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. The High Court said this Tribunal should not allocate any weight to propounded breaches of treaty obligations in circumstances where international treaties such as the ICCPR and CRPD have not been incorporated into Australian domestic law.172 That should be the end of the inquiry.
172 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [20].
233.In BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,173 Her Honour Justice Jagot174 said that the requirement to consider the legal consequences of a decision being made s 501 of the Act ’…applies to the inevitable and direct legal consequences of the exercise of the statutory power in question.’175 We do not accept that an inevitable and direct legal consequence of a non-revocation decision in the instant proceeding would comprise or otherwise constitute any breach of Australia’s international treaty obligations.
234.The primary basis for our reaching this conclusion derives from the text of the specific instruments the Applicant propounds could or would be breached. Article 7 of the ICCPR creates a prohibition on subjecting a person to torture or to cruel, inhuman or degrading conduct. Any assessment of whether a person has been subject to any such conduct is an exercise that ‘…necessarily involves a detailed analysis of, and evidence about, the conditions facing the applicant…and the impact on him in the circumstances of the case.’176 There is nothing before us to suggest the Applicant has been subjected to any of the conduct prohibited by Article 7 (ICCPR) during his time in an Australian immigration detention facility.
235.Further, the Applicant has not provided any cogent explanation or basis upon which the Tribunal could make any such finding. On the contrary, his time in immigration detention has involved the provision of a not insignificant measure of treatment for his psychopathological symptoms. Neither the IHMS records nor any other document before the Tribunal is indicative of any adverse finding about the psychiatric care the Applicant has received in immigration detention or that it otherwise engages any of the conduct prohibited by Article 7 of the ICCPR;
236.Article 9 of the ICCPR prohibits a person being subjected to arbitrary arrest or detention. The detention of this Applicant is the result of the operative effect of specific provisions in the Act. The objects of the Act are to ‘…regulate, in the national interest, the coming into,
173 [2022] FCA 878.
174 As Her Honour then was; Justice Jagot is now a Justice of the High Court of Australia.
175 At para [51].
176 SCDZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4442 at [180], per DP Redfern.
and presence in, Australia of non‑citizens.’177 Therefore, the Australian Parliament has given legislative imprimatur to the Applicant’s placement and continued presence in immigration detention. His detention cannot be found to be arbitrary.
237.To the extent the Applicant places reliance upon international authority in support of its contentions about Articles 7 and 9 of the ICCPR, the relevance and applicability of those authorities should be received with caution. It is well-established that decisions of international courts do not hold precedential weight over Australian Courts or Tribunals. In addition, the cases sought to be relied upon by the Applicant are distinguishable on the basis that they were decided on a completely different set of circumstances to that of the Applicant now before the Tribunal. We agree with the Respondent who contends that the ultimate test of whether Article 9 of the ICCPR has been breached (and we think the following principle can be applied to other Articles or other Conventions) is to be found in the decision of His Honour Justice Hayne in Al-Kateb v Godwin [2004] HCA 37:
‘There must, at least, be doubt about whether the mandatory detention of those who do not have permission to enter and remain in Australia contravenes Art 9 of the ICCPR when the detention is in accordance with a procedure established by law (Art 9(1)) and the lawfulness of that detention can readily be tested in a court (Art 9(4)) (as is the lawfulness of the appellant's detention).’178
238.Article 14 of the CRPD states:
‘ 1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
a)Enjoy the right to liberty and security of person;
b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.’
177 See s 4(1) of the Act.
178 At [238].
239.In its reply submissions, the Applicant purports to justify an application of this Article 14 to the instant facts by reference to a 2013 decision of the European Court of Human Rights and on the basis of certain comments of a United Nations Committee on the Rights of Persons with Disabilities made in 2015.179 There is no explanation of how this Article 14 could be breached by the Applicant’s ongoing detention.
240.Article 15 of the CRPD states:
‘1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.
2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.’
241.In its reply submissions, the Applicant purports to suggest that the abovementioned United Nations Committee ‘…has found that the indefinite detention of a cognitively impaired person amounted to inhuman and degrading treatment, “taking into account the irreparable psychological effects that indefinite detention may have on the detained person”’.180
242.With specific reference to the points sought to be made by the Applicant in relation to Articles 14 and 15 of the CRPD, the following can be said. In its written reply submissions, the Applicant contends that based on certain research of overseas decisions and/or comments by international Committees, the Applicant’s position is one of suggesting that ongoing detention will have a detrimental impact on his mental health. Such a contention must be rejected on the basis that there is no evidence before this Tribunal that any particular harm has been occasioned to this Applicant as a result of him being in an Australian immigration detention facility. This is especially the case when one has holistic regard to the totality of the medical evidence before the Tribunal which is suggestive of very significant medical and/or psychiatric and/or other ancillary clinical services being provided to the Applicant during his time in immigration detention.
243.Any reported incidents of violence during his time in immigration detention have never derived from any deficiency in the extent of the medical services that have been devoted to
179 Exhibit 3, pp 11-12, para [32].
180 Ibid, p 12, para [33].
treatment and management of his symptoms. It is, to our minds, an inaccurate conflation of the evidence to suggest that any incident of violence in which the Applicant has been involved or subjected to have been the result of any shortfall or negligence resulting from the care that has been afforded to him.
244.While it is difficult to cavil with Dr Chew’s evidence that ongoing detention does have an effect on mental health, we agree with the Respondent’s submission made during closing submissions: there is nothing in the material to suggest that the Applicant’s time in either prison or immigration detention has placed him in any worse position in terms of his basic safety and healthcare than would be the case if he were in the community. Harsh though it may sound, we agree with the Respondent’s following contention during closing submissions:
‘And in fact, on one view it’s precisely the detention setting that has led to some of the gains around compliance with medication and so on that - so the suggestion that there is a very tangible dramatic impact or worsening of conditions associated with staying in detention for this particular individual is not born out by the evidence.’181
245.Accordingly, we are of the view (and we find) that there would be no breach of Australia’s obligations pursuant to the ICCPR or the CPRD and that this factor does not militate in favour of the allocation of any weight pursuant to this further Other Consideration (e). Overall we are of the view (and we find) that this Other Consideration (e) carries a heavy, but not determinative, level of weight in favour of restoring the Applicant’s visa status to remain in Australia.
Findings: Other Considerations
246.The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: is of neutral weight;
(b)extent of impediments if removed: is of neutral weight;
(c)impact on victims: is of neutral weight; and
181 Transcript, p 122, lines 43-47.
(d)links to the Australian community: confers a slight and not determinative, level of weight in favour of setting aside the decision under review; and
(e)prolonged detention: carries a heavy, but not determinative, level of weight in favour of setting aside the decision under review
CONCLUSION
247.Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
248.In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Consideration 1: confers a very heavy level of weight in favour of
affirming the decision under review;
·Primary Consideration 2: confers a heavy level of weight in favour of affirming the decision under review;
·Primary Consideration 3: confers a slight, but not determinative, level of weight in favour of setting aside the decision under review;
·Primary Consideration 4: confers a very heavy level of weight in favour of
affirming the decision under review;
·We have outlined the weight attributable to the Other Considerations. We are of the view (and we find) that the combined weight I have allocated to each of Primary Consideration 3 and Other Considerations (d) and (e), respectively, are not sufficient to outweigh the combined weight we have allocated to Primary Considerations 1, 2 and 4;
·A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours affirmation of the Respondent’s decision under review made on 6 December 2022.
DECISION
249.Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 6 December 2022 not to revoke the mandatory cancellation of the Applicant’s Resolution of Status (Class CD)(Subclass 851) visa.
I certify that the preceding 249 (two hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Owen, Senior Member Theodore Tavoularis
............................[SGD]...................................
Associate
Dated: 28 February 2023
Date(s)ofhearing: 8 and 9 February 2023 CounselfortheApplicant:
Mr D Bhutani
Solicitorforthe Applicant:
Ms K Bones; Ms K Anandasivam
Legal Aid NSW
SolicitorfortheRespondent:
Mr K Eskerie (Partner)
Sparke Helmore Lawyers
ANNEXURE A
EXHIBIT LIST
Applicant’s Material
Exhibit No.
Description
Date of Material
Date Lodged
1
Statement of Facts, Issues and
17 January 2023
17 January
Contentions 2023 2
Evidence Bundle
Various
· Dr Chew (Psychiatrist) Letter of Instruction and Report
· Public Guardian Letter of Support
· Applicant IHMS Records
· Family and Federal Circuit Court Orders
3 Reply Submissions
3 February 2023
3 February
2023
4
Supplementary Evidence Bundle
Various
Respondent’s Material Exhibit No.
Description
Date of Material
Date Lodged
5
Statement of Facts, Issues and Contentions
27 January 2023
27 January
2023
6
Tender Bundle
Various
7. G-documents filed 22 December 2022
0
6
0