DMJN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 345

DMJN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 345 (19 January 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/8232

General Division )
Re: DMJN
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  A G Melick AO SC, Deputy President
DATE OF CORRIGENDUM:            22 February 2022
PLACE:           Hobart

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

The text “decides to revoke the cancellation of the Applicant’s visa” is replaced with “decides not to exercise the discretion in s 501(2) of the Migration Act 1958 to cancel the Applicant’s visa”.

.....................[sgd]..............................................
A G Melick AO SC, Deputy President
Division:GENERAL DIVISION
File Number: 2021/8232
Re:DMJN
APPLICANT

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

Decision
Tribunal:A G Melick AO SC, Deputy President
Date of decision:               19 January 2022
Date of corrigendum:           22 February 2022
Date of written reasons:         22 February 2022
Place:Hobart

The Tribunal sets aside the decision under review and in substitute decides not to exercise the discretion in s 501(2) of the Migration Act 1958 to cancel the Applicant’s visa.

....................[sgd]..........................................
A G Melick AO SC, Deputy President
Catchwords
MIGRATION –- Revocation of cancellation of a Class BB Subclass 155 Five Year Return (Residence) – where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – committed the act charged but is not guilty on the ground that he was insane at the time so as not to be responsible according to law – psychosis – substance use – decision under review is set aside and substituted.
Legislation
Criminal Justice (Mental Impairment) Act 1999 (Tas)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Anand and Minister for Immigration, Citizenship, Migrant Services and Muliticultural Affiars (Migration) [2021] AATA 4437
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500.
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Re Ong Chin Jui and MIBP [2017] AATA 2707
Re Wang and MIMIA [2003] AATA 555 at [107]
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Wang v MIMIA [2004] FCA 108 at [86]
V324 of 2004 v MIMIA [2004] FCAFC 259
YNQY v Minister for Immigration and Border Protection [2017] FCA
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Commonwealth, Parliamentary Debates, Senate, 11 November 1998 (Sen Rod Kemp)
REASONS FOR DECISION
A G Melick AO SC, Deputy President
22 February 2022
INTRODUCTION AND BACKGROUND

The Applicant is 62 years old and a citizen of the United Kingdom. The Applicant arrived in Melbourne, Victoria in 1971 at the age of 12.[1] Prior to its cancellation, the Applicant held a Class BB Subclass 155 Five Year Return (Residence). The Decision to cancel that visa is the subject of this application for review.
[1] G-documents, 143.
The Applicant was charged with the murder of his mother on 22 March 2013 and was acquitted on the grounds of insanity. Orders were subsequently made under the Criminal Justice (Mental Impairment) Act 1999 that required the Applicant to be detained in a mental health facility under a Restriction Order.[2]
[2] G-documents, 42.
In 2016, the Applicant wrote to the Minister (“the Respondent”) on two occasions requesting advice as to the status of his visa in view of his circumstances.[3]
[3] G-documents, 107-108.
On 1 October 2019 the Applicant received a Notice of Intention to Consider Cancellation (the Notice) related to his Class BB Subclass 155 Five Year Return (Residence) visa, informing him that the Respondent or a delegate of the Respondent intended to consider whether there were grounds to cancel his visa.[4] The Applicant made representations on 19 October 2019 that were received by the Department of Home Affairs on 6 November 2019[5] and made further submissions after this date.
5.On 27 October 2021, the Respondent decided to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Respondent reasonably suspected the Applicant not pass the character test (the “Delegate’s Decision”).[6]
[4] G-documents, 151-4.
[5] G-documents, 92-106.
[6] G-documents, 34-6.
The Applicant subsequently lodged an application for review in this Tribunal on 4 November 2021.[7] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(b) of the Act.
[7] G-documents, 1.
A hearing in this matter was held on 13, 14 and 17 January 2022. The Applicant gave oral evidence and called the following witnesses to give oral evidence:
(a)the Applicant’s sister, Mrs A
(b)the Applicant’s friend, Mr H
(c)the Applicant’s friend, Mr W
(d)the executive manager at the men’s crisis shelter, Mr Ian Robertson
(e)the Applicant’s case worker, Ms Vickie Brown
(f)the Applicant’s case worker, Mr Peter Callander
(g)the Applicant’s psychiatrist, Dr Steven Patchett
A summary of that evidence is as follows.
The Applicant
The Applicant was a forthcoming witness. It was clear to the Tribunal that he had strong self-awareness and clarity around his triggers and the supports he required to ensure the safety and wellbeing of himself and others.
The Applicant arrived in Australia with his parents and his seven siblings. He went to high school in Launceston and after finishing school at the age of 15, he found a job working in a shop in Launceston. After his wife fell pregnant at the age of 19, he began working in the mining industry.[8] The Applicant has two children, aged 33 and 34. It was not until 1989 the Applicant became involved in the technology industry. He worked in technology for 14 years.[9]
[8] Transcript, 13.
[9] Transcript, 13.
While working in the technology industry, the Applicant travelled overseas roughly five to six times a year for weeks at a time. In 2000, the Applicant decided to move to the United Kingdom. He lived there for approximately 18 months to two years. In cross-examination, the Applicant explained that it was in 2000 that his drug use became “chronic”, he clarified this meant he was using drugs on a daily basis.[10]
[10] Transcript, 31.
He returned to Australia in 2003 and moved in with one of his sisters, Mrs A, in Hobart. After living in Hobart for a short time, he moved to Melbourne. It was here that the Applicant had his first psychotic episode in April 2003.[11] When this episode occurred, the Applicant did not identify it, rather attributing it to him being “weird”.[12] He therefore did not seek or receive any treatment at the time.
[11] Transcript, 14.
[12] Transcript, 14.
The Applicant did some work just prior to the death of his mother with Mr H and Mr W in Launceston in a public relations company. He explained that it was during this time that the delusions he was experiencing became even more acute, around 2007-2008.[13] The Applicant described how these affected his work at the time, describing himself as unreliable:
“It got more and more, like (indistinct), compulsive. It came to affect more and more of my day in terms of my activities involved within the (indistinct)”.[14]
[13] Transcript, 17.
[14] Transcript, 17.
When asked about the types of supports the Applicant had engaged in after he was placed on the Restriction Order after causing the death of his mother, the Applicant replied:
“A lot of psychotherapy. The delusional beliefs ended quite dramatically at the court case and that was - I explained that to my psychologist and my psychiatrist. It was like a massive intervention, the court case because everything is displayed before you in terms of the forensic evidence and I realised that the beliefs I had were delusions and that I had some severe mental health issues. With that I engaged with the various different professionals at the Wilfred Lopes Centre, psychology and psychiatry”.[15]
[15] Transcript, 17.
The Applicant expressed the desire to reconnect with his family as one of main motivators to get better after causing the death of his mother.[16] He also gave evidence about the nature of his relationships with his family and friends after the death:
“By association of their contacting me, then they would have to relive, the incident over and over again. So, I had to deal with the process on my own for a number of years. I started communicating with Noreen and my first family members probably about three years after the (indistinct). I needed to give them time to heal. And (indistinct) to try and help me and I refused his help. Not because I didn't want his help, there again I really needed people to get somehow on with their lives”.[17]
[16] Transcript, 17.
[17] Transcript, 14.
During cross-examination, it was suggested that the Applicant may have overstated the closeness of his family. The Applicant agreed there had been large periods of separation, particularly following the death of his mother where he chose not to engage with his family. He agreed that since the Respondent had made the decision to cancel his visa, his support network in Australia had consolidated as he began “the process of connecting to the family”.[18]
[18] Transcript, 49.
The Applicant was also asked about his desire to work in the mental health industry and particularly as a peer support worker. He explained the benefit that peer support work, although an emerging practice, had made on his own recovery. He explained that he has been seeking to undertake a peer support mentoring program that had the potential to evolve into paid employment.[19]
[19] Transcript, 14.
The Applicant expanded upon some of the forms of therapy that had been beneficial to his own recovery. He indicated that the therapies that he had learned helped him to deal with the anxiety and “the emotions that are quite high at times, it can come on in a spurt. So to deal with that and to deal with the shame, the guilt, yes, it's (indistinct)”.[20]
[20] Transcript, 19.
The Applicant also talked about the importance of his crisis, relapse, prevention and discharge plan “which identifies triggers and for me the triggers are auditory or visual hallucinations. Lack of sleep, change in mood, adopting delusional beliefs”.[21] The Applicant explained that he was able to report these triggers to his psychologist, psychiatrist and case worker at Wilfred Lopes Centre.
[21] Transcript, 19.
The Applicant also discussed the role of his core values as a tool in managing his mental health. He indicated he had not done any drugs since 2012 when his mother died, and stated:
“In developing core values, which was an important thing to me, the core values I had (indistinct) prior to - excuse me - my psychotherapy session, my psychologist asked me to pick core values for life, for work and for relationships. And within my core values for life it's honesty, kindness and tolerance. And within that I have abstinence as a base core value”.[22]
[22] Transcript, 20.
During cross-examination, it was suggested that the Applicant’s experience of recovery was not as smooth as he purported it to be. The Applicant did not dispute this and disclosed several allegations including him being a malingerer and manipulative. The Applicant maintained that all of these reports had been disproven once investigated.[23]
[23] Transcript, 23.
The Applicant was taken to reports whereby various treating psychiatrists had noted the possibility of symptoms that would indicate an underlying psychosis. Again, the Applicant did not challenge these reports and agreed that he had an underlying condition that could be exacerbated by stress or drug use.[24]
[24] Transcript, 30.
It was suggested the Applicant had not always considered drug use to have been a contributing factor in his psychosis. He described a process of understanding that he had undertaken while at the Wilfred Lopes Centre that had ultimately led him to accept that drug use was a major contributor to the death of his mother.[25]
[25] Transcript, 34.
When the Applicant was asked about ceasing to take Olazapine, a medication used to treat psychosis, he clarified that it was the doctors who unprescribed the medication. After being taken off the anti-psychotic medication, the Applicant expressed a desire to remain so because he was “asymptomatic”.[26] At one stage it was suggested he should be prescribed regular antipsychotic medication as it would increase the prospect of transitioning to a supervision order. The Applicant explained that he did not want to take medication only for the benefit of changing the restrictions he was subject to, it would need to be for his health. He indicated that after discussions with a treating doctor it was made clear that there would be benefits to his health and he begun a regular dose of anti-psychotic medication again.[27]
[26] Transcript, 39.
[27] Transcript, 40.
The issue of medication was raised again in the context of the prescribed dosage. The Applicant expressed a strong desire not to increase his dosage from a sub-therapeutic dose to a therapeutic dose, despite the encouragement from some treating psychiatrists, unless he began to show symptoms of psychosis.[28]
[28] Transcript, 41.
The Applicant was finally asked about an incident of family violence that occurred in 2000. The Applicant was charged with common assault after assaulting his then-wife. There was limited evidence before the Tribunal regarding the circumstances surrounding the offence, however the Applicant pleaded guilty to the charge and conceded it during his oral evidence.
When asked about his removal to the United Kingdom, the Applicant explained that he had already applied for the International Prisoner Transfer Program to ensure the continuation of his current restriction order should he be deported. The Applicant reported having a comfortable amount of assets available to him and agreed there would not be any cultural or social barriers to his resettling in the United Kingdom.[29] His evidence suggested that he had explored possible options for work and home should he be deported.
[29] Transcript, 53.
Mrs A, the Applicant’s sister
Mrs A is the Applicant’s older sister. She gave oral evidence at the hearing and wrote a four-page statement that was tendered in evidence as part of the G-documents.
She gave evidence about the process of healing since the death of her mother, explaining that it had taken a long time for her and the Applicant to develop a brother-sister relationship again.[30] She discussed the process of reinstating contact with the Applicant, noting the importance of not causing the Applicant any further harm or deterioration.[31]
[30] Transcript, 65.
[31] Transcript, 66.
The Applicant’s sister maintains contact with the Applicant’s extended family and provides updates on the Applicant’s health and wellbeing, she described herself as a “conduit”.[32] She explained that many members of their extended family cared for the Applicant and were pleased to know that he was recovering. Mrs A had coordinated the creation of a photo board for the Applicant’s room with the assistance of her extended family. One of her nieces, Ms M, writes letters to the Applicant and sends photos of her children. She explained that the Applicant did not want to cause further distress for his family, so it was only if family members wished to engage in the process of reinstating contact that she would facilitate it.
[32] Transcript, 67.
During cross examination, Mrs A was asked about her other siblings’ relationships with the Applicant. She is the only one of the Applicant’s siblings to maintain contact, although there was evidence that they supported his recovery and did not want him to be deported.[33]
[33] Transcript, 70.
One of their sisters lives in the United Kingdom. Mrs A recounted an email exchange with this sister, where the sister living abroad cited her anger and frustration that the Applicant was being deported having lived in Australia for 50 years.[34]
[34] Transcript, 90.
Mrs A never observed that the Applicant was using drugs before the death of their mother, and while he appeared to have changed upon return to Tasmania, Mrs A attributed this to the breakdown of his marriage:
“…his marriage had broken up, he was going through, you know, a lot of emotional issues after a break up which we all do. He went away, he came back, he seemed different, there was - yes, he just seemed different but I thought he was still suffering the affects (sic) from the marriage break up and - but in saying that, not anything that I could say I was concerned about, or I would've thought he was using drugs, otherwise I wouldn't have had - he wouldn't have been staying in my home because I had three teenage boys, so there was definitely no evidence of that”.[35]
[35] Transcript, 74.
Mrs A was asked about her impression of the Applicant in the days prior to the death of their mother. The family had been visiting Launceston to attend their sister’s wedding, Mrs A mentioned a family gathering and stated:
“…And [the Applicant] came out and stood against the wall and I thought he'd lost a lot of weight. And I didn't think he looked well. And I was worried. About his health, I mean. But he, in hindsight - which is a wonderful thing - I thought he was very, very withdrawn and maybe looked very lost”.[36]
[36] Transcript, 74.
Due to injury, it is no longer viable for Mrs A to travel by plane for long distances.[37] She would not be able to visit the Applicant if he were deported to the United Kingdom. When asked what it would mean for her if the Applicant was deported, she stated:[38]
“The added burden to me and [the Applicant] would be - I don't even know how to explain, the process, okay, to where we are right now, has been a very long, long, emotional temple, process. So if - we have now got here, and we are in a very, very good place together as brother and sister, the you - he is deported then all of that 10 years, and all of that work, the whole - everything that we went - everything that we went through means nothing, it means absolutely nothing, I go back to where I was the day I lost my mother and my brother because they - that's what I go back to. That day. Because it's happening all over again”.[39]
[37] Transcript, 65.
[38] Transcript, 69.
[39] Transcript, 69.
Mr H, the Applicant’s friend
Mr H has known the Applicant since he was 12 years old. He also grew up with the Applicant’s family and considered them a second family. He elaborated on the common identity he shared with the Applicant as a migrant child and explained how important this was in what he described as a “long connection” that “culminates today”.[40] Mr H gave evidence at the hearing and wrote a statement that was tendered as part of the G-documents. Mr H is a permanent resident in Australia.
[40] Transcript, 89
After their youth, the Applicant and Mr H spent a period of approximately 10 years apart when they had families and lived in different states. In 2004, Mr H bumped into the Applicant in Launceston.
During examination in chief, Mr H spoke of the diverse groups of people he and the Applicant had known throughout the duration of their friendship, all who spoke of the Applicant’s good character:
“…they used to love [the Applicant], because he's such a lovely outgoing person. Life of the party. Just a delightful human being, and this is an absolute tragedy. But all those people we worked with, they have - from the computer industry, can't believe it. They just don't believe what's happened”.[41]
[41] Transcript, 90.

During cross-examination, Mr H was asked about his knowledge of the Applicant’s drug use. That evidence is as follows:
(a)The Applicant was not known to consume alcohol but smoked “social marijuana”. Mr H believed that in 1983, when they shared a house, he would have smoked “once a month or something with friends”.
(b)In 2004, when the Applicant was working for Mr H in Launceston, Mr H stated that it was apparent he had a drug problem at times. Mr H explained:
“So he'd have sort of really good periods and then the odd bad period. And periods would not last long because I used to pull him up on it. We've probably had those conversations half a dozen times in two and a half, three years. I knew he was struggling with it. I knew he wanted to turn left, but it's - I knew he was withdrawn every now and then”.[42]
(c)When Mr H was asked about the Applicant’s drug use in the weeks preceding the death of his mother, Mr H referred to a meeting with the Applicant at a coffee shop where Mr H asked the Applicant if he was taking drugs:
Mr Wilson: “And you told him he needed to get off whatever he was on?---Yes. Yes. Sorry.
What was his reaction to that?---He started crying. Broke down and just crying.
And did he tell you that he was only taking a small amount of marijuana?---No. He just said - no.
Did he tell you what he was taking?---No. Well, he would deny it. If I said, are you taking - this is over the two and a half years as well. Whenever - I don't remember - I remember the gist of that conversation. I remember being in that coffee shop and him balling his eyes out, but all those - we've had those conversations before. Over two and a half years. But this was - he was definitely in a more agitated state and - but I think, you know, sorry, I think in my view it was because he'd lost his job, if you like. And you know, and that had sort of knocked him about a bit. And I'd lost - we'd lost - we hadn't seen him for two or three weeks, so we didn't see him every day”.[43]
[42] Transcript, 93.
[43] Transcript, 95.
Mr H was also asked about his knowledge of the Applicant’s regeneration beliefs. He explained that he knew about them late, not early on. He noticed the Applicant had become unreliable and delusional, and in the summer prior the death of the Applicant’s mother, he would have conversations with the Applicant that “seemed really strange”.[44] Despite this, Mr H stated:
“… he's just got no violence in him whatsoever. Even then, we're - that's why when it was building up to the - we didn't think he was a danger to anyone. He wasn't. He was a danger to himself. He need - just needed help with a bit of structure at that time. If he'd shown some signs where we could have said, we need to get him help, but he didn't. He - he operated - apart from these weird conversations about regeneration of youth, and these weekends when he might smoke some drug or take a drug. He was - he was fine”.[45]
[44] Transcript, 96.
[45] Transcript, 96-7.
Prior the death of the Applicant’s mother, Mr H terminated the Applicant’s employment with his company. His partner had informed Mr H that the Applicant had become “too erratic”.[46] He described the Applicant during this period as “lost”.[47]
[46] Transcript, 93.
[47] Transcript, 93.
Mr H had a strong view about whether the Applicant should be allowed in places where he could be exposed to drug-use. When asked whether he was concerned about the prospect of the Applicant relapsing, he said: “Absolutely. Yes”.[48]
[48] Transcript, 94.
After the Applicant was taken into custody, Mr H undertook significant efforts to contact him. He did not make contact until 12 months ago when the Applicant came to visit him in Launceston with their mutual friend, Mr W. Since then, they have kept in contact via telephone and email.[49]
[49] Transcript, 99.
When asked about the ongoing support he could give to the Applicant, he indicated the Applicant could come and stay with him for a while if he needed a place. He stated:
“… it would be no different to when I met him in 2004. So that's - he's a good friend. I loved his mother dearly. She was a special woman. But I forgive [the Applicant] and I believe that he's a very safe person to have around, so he's welcome here. My kids would want to see him. I know there's people all over Australia that want to see him”.[50]
[50] Transcript, 99.
Mr W, the Applicant’s friend
Mr W met the Applicant when they both worked in the casino industry in the 1980s.[51] After moving to different states, they lost contact for several years before reconnecting in Tasmania where the Applicant worked for Mr W and Mr H in the years preceding the death of his mother.
[51] Transcript, 107.
Mr W described the Applicant as “very tech savvy” and explained that he was able to assist Mr W and Mr H in website building, where most businesses did not have access to it.[52] He worked closely with the Applicant for about two years after 2008.[53]
[52] Transcript, 108.
[53] Transcript, 108.
Mr H had limited knowledge of the Applicant’s struggles during the period leading up to the death of his mother. It was clear from his evidence that the Applicant had ceased working for the company owned by Mr H and Mr W prior to ceasing work for Mr H’s real estate company.
Mr W explained that after the death of the Applicant’s mother, he and Mr W had sought to reach out to the Applicant:
“You know. It was - it was important, to us, that he knew that, regardless of the circumstances of his - what had gone on, in - in his life, with his mum, and everything like that - that he still had some support, in us. So, we - we did our best to reach out, and - and do, what we could, to let him know, that we were there for him, if, 5 indeed, he needed us”.[54]
[54] Transcript, 109.
The Applicant reconnected with Mr W around the same time that he reconnected with Mr H, and Mr W was present at the visit in Launceston with Mr H. Mr W had some involvement in arranging the Applicant’s trip to Launceston, although he explained that Mr H took the lead. He explained that he had kept contact with the Applicant since he visited him in Launceston. He received an email from the Applicant at Christmas time and bumped into him at a function for the St Vincent de Paul Society around the same period.[55]
[55] Transcripts, 114.
Mr Robertson
Mr Robertson is the executive manager at the men’s crisis shelter where the Applicant resides. He lodged an undated statement in support of the Applicant[56] and gave oral evidence at the hearing.
[56] Exhibit 3.
Mr Robertson explained that the Applicant had been undertaking peer support training with a view that he would work in a peer support advocacy role in the future. He explained the Applicant already performed that role without the formal title at the men’s shelter by meeting with Mr Robertson once a week to discuss issues facing the organisation and the men.[57] Mr Robertson indicated this role had the potential to be paid employment for the Applicant in the future.[58]
[57] Transcript, 118-119.
[58] Transcript, 119.
Mr Robertson sees the Applicant on average five to 10 times per week. While he is currently required to live at the men’s crisis shelter in accordance with the restriction order, Mr Robertson foresees that if that were to be lifted, the Applicant would likely become independent. He indicated this would not preclude the Applicant’s ongoing involvement at the shelter as a peer support advocate.[59]
[59] Transcript, 122.
Ms Brown
Ms Brown is the Applicant’s case manager at the shelter where he lives. Ms Brown meets with the Applicant fortnightly for a case management meeting, but she interacts with the Applicant daily at the shelter. She described the Applicant as very supportive of both residents and staff:
“There is nothing [the Applicant] would not do for any of us when asked, and nothing - he's taken residents for driving lessons. He's taken them to appointments. He's just been so supportive. He's - and when he has meetings with me, he says to me he does this because he wants to give back to community and feel part of community again”.[60]
[60] Transcript, 129.
Ms Brown annexed a copy of the Applicant’s crisis, relapse, prevention and discharge plan to her written statement dated 7 January 2022 tendered in support of the Applicant.[61] Another statement by Ms Brown dated 8 December 2021 was also tendered.[62] She explained the Applicant shared his crisis, relapse, prevention and discharge plan with her so that he could be assisted to access the supports outlined within the plan should he need to.[63] Ms Brown agreed this plan was to give her knowledge about his triggers and potential warning signs.[64]
[61] Exhibit 4.
[62] Exhibit 5.
[63] Transcript, 128.
[64] Transcript, 129.
Mr Callander
Mr Callander is a counsellor psychotherapist working at the men’s shelter where the Applicant resides. He wrote a letter in support of the Applicant that was tendered into evidence and gave oral evidence at the hearing.[65]
[65] Exhibit 6.
Mr Callander oversees psycho-educational and interactive groups with the men at the shelter. Each workshop focusses on a particular topic, such as mindfulness or self esteem. Mr Callander was asked the Applicant’s response to the workshops:
“He is very willing to kind of share his own experience because obviously with the years he spent in the Wilfred Lopes Centre he has actually put an extraordinary amount of work into - this is my opinion obviously, from my experience of him, extraordinary amount of work into his own recovery and developing his own mindfulness practice based on Russ Harris' Acceptance and Commitment Therapy, so particularly from that point of view around core values, around mindfulness practice, acceptance and commitment therapy, you know, he actually has a lot to contribute to the group, so - but he's very willing to learn, very willing to reflect, very willing to try and integrate and take on board different ideas and incorporate that into, you know, his daily life and his way of being , yes, you know, as I've said in my letter, I can't speak more highly of [the Applicant], just with his attitude”.[66]
[66] Transcript, 132.
Mr Callander also commented on the Applicant’s desire to live by core values, his capacity for self-reflection and his honesty. Mr Callander said that the Applicant’s honesty functioned as a form of protective factor against any relapse in alcohol or drug use or his mental health because it supported him to be self-aware and to seek support when he needed it.[67]
[67] Transcript, 132.
Mr Callander commented on the Applicant’s commitment to his own self-development, noting:
“I think [the Applicant's] experience of finding himself, you know, having been responsible for the crime that, you know, his indexed offence, I think it has led him to almost dedicate his life to making sure that he never strays back to any kind of a state that could ever lead to such, you know, a hideous tragic experience ever again. So that's what I think is the main motivation for [the Applicant] to be as dedicated and disciplined in his commitment to his own recovery and that's my experience of him every time I observe him, every time I interact with him, every time I hear anything about him from others, everything is very congruent with that for me”.[68]
[68] Transcript, 133.
Dr Patchett
Dr Patchett is a forensic psychiatrist. Dr Patchett had produced two reports, one for the Department of Home Affairs dated 12 July 2021, and another for the Supreme Court of Tasmania dated 20 July 2021, which were tendered as part of the G-documents.[69]
[69] G-documents, 77-84.
Dr Patchett assessed the Applicant’s risk of reoffending as low. When asked about his assessment during his evidence, he described the environment at the Wilfred Lopes Centre, noting the Applicant was subject to “very intense scrutiny”.[70] One of the assessment tools used assessing the Applicant was the the Dynamic Appraisals of Situational Aggression (DASA), which examines day-to-day behaviour that might lead to situational aggression. It is scored across seven domains of negative behaviours including irritability; impulsivity; unwillingness to follow directions; sensitivity to perceived provocation; easily angered when requests are denied; negative attitudes; and verbal threats.[71] The Applicant had not recorded a presence of the above behaviours for the past eight years.[72]
[70] Transcript, 137.
[71] Transcript, 137.
[72] Transcript, 137.
Dr Patchett also discussed the Applicant’s assessment using the Historical Clinical and Risk Management assessment (HCR-20). The Applicant had only consistently scored under two of the risk factors, substance use problems in the past and major mental illness. Dr Patchett describes these factors as historical factors and said the Applicant had taken steps to address these. For example, his mental illness is being treated:
“It's been treated for eight or nine or even 10 years now. He hasn't shown any signs of the acute psychosis that he was suffering from at the time of the original incident. So he's responded incredibly well actually to that. There was a time when he was in prison when he was off medication, yet the psychosis had been treated acutely and settled when was off medication. But he's been - he's now on an antipsychotic, Aripiprazole, in what we consider to be a prophylactic dose now. It's preventing the relapse of mental illness and he has been taking it and continues to take it religiously as we continue to monitor him very closely”.[73]
[73] Transcript, 139.
Dr Patchett also noted the Applicant has had counselling in relation to his substance abuse:
“The other thing is that he's had counselling, so with relation to substance use. He has very good insight now into the relationship between cannabis use and possibly cannabis laced with methylamphetamine way back then, and he has taken great steps, himself, to avoid any contact”.[74]
[74] Transcript, 139.
When asked about whether there was an exit or prevention plan, should the Applicant continue to gain greater independence, Dr Patchett discussed the Applicant’s success on the graduated rehabilitation leave plan and his consistent compliance with leave conditions, including regular drug testing.[75]
[75] Transcript, 140.
Dr Patchett explained the gradual relaxation of restrictions imposed upon the Applicant should he transition from a restriction order to a supervision order:
“What you would expect for this kind of very serious incident, would be that he transfer to a supervision order for a number of years, continue to be closely monitored and then when the feeling of the community team was that he had been fully rehabilitated, there'd been no signs of relapse in 15 years or something, that he then be - application be made to the Supreme Court for the discharge of the forensic order which would be a supervision order at that stage. Yes and then he would be - with his kind of profile of mental illness and the interaction of the substance use at the time, he would probably be discharged from the community service but he would be fully au fait, and he is anyway now, with his relapse signs and with whom to get in contact with should he relapse in the future. And, as I say, the risk of that happening I adjudge at the moment to be low”.[76]
[76] Transcript, 141.
During cross-examination, a number of reports of the Applicant potentially exhibiting signs of psychotic symptoms were put to Dr Patchett. These reports also suggested the Applicant could disguise his symptoms. Dr Patchett did not think the reports of odd behaviour were a basis to conclude he was psychotic and that the reports were likely conjectures.[77]
[77] Transcript, 145.
Dr Patchett opined the Applicant had always been committed to continuing to take antipsychotic medication, yet during cross-examination he was asked about whether he knew about reports that the Applicant had resisted medication or expressed a reluctancy to take it. Dr Patchett responded:
“Now, look, I can't comment on what approaches were made in the past, and you know, I have to say sometimes, they were a little clumsy. My experience, though, with him as I've done that with him, and with that understanding, he's an intelligent man, I think he understands the rationale, and I think he understands the wisdom of that recommendation, and that's why I think he will remain compliant”.[78]
[78] Transcript, 146.
Dr Patchett was also asked about the dosage of the Applicant’s medication. Dr Patchett disagreed with the description of the Applicant’s dosage as sub-therapeutic. He explained:
“It depends on what the purpose is. It's under this usual therapeutic dosage levels for acute psychosis, but he hasn't got acute psychosis. So it's being used prophylactically. That's why the does is less than what you would normally see if we were treating acute psychosis”.[79]
[79] Transcript, 147.
When asked what would happen if the Applicant ceased taking his medication, Dr Patchett replied:
Mr Wilson: “Well, what do you think would happen if he ceased taking it?---Notwithstanding those conversations we had earlier about the diagnosis, maybe nothing. I couldn't quantify it. I think the biggest risk is substances. Is reverting to substances. Really, less than the psychosis. Yes. But I think it's a reasonable prophylactic dose, and that's my view”.[80]
[80] Transcript, 147.
Dr Patchett maintained the risk of the Applicant committing future violence was low, despite being asked how another application of the HCR-20 rated the Applicant’s risk of future violence being “moderate”.[81] He agreed the Applicant exhibited some signs of narcissistic personality traits but did not consider these to amount to a disorder.[82]
[81] Transcript, 153.
[82] Transcript, 154.
The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Procedural History
The Tribunal published its decision in this application pursuant to s 43(1) of the Administrative Appeals Act 1975 (Cth) on 19 January 2022, one day prior to the 84^th day relevant to this matter. In doing so, the Tribunal met the requirements of s 500(6)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of this Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs (2019) 271 FCR 326 (Khalil), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84-day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271‑273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
LEGISLATIVE FRAMEWORK
The Minister has the power to cancel a visa where the Minister reasonably suspects a person does not pass the character test pursuant to s 501(2):
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.

There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether the discretion to cancel the Applicant’s visa should be exercised
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(e), which provides that a person will have a substantial criminal record if “the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution”.
On 22 March 2013, the Applicant was found to have committed the act charged but is not guilty on the ground that he was insane at the time so as not to be responsible according to law with respect to one charge of murder. A restriction order was made pursuant the Criminal Justice (Mental Impairment) Act 1999 s 21(1)(a) requiring the Applicant to be admitted to and detained in a secure mental health facility until the order is discharged by the Supreme Court.[83]
[83] G-documents, 43.
The Applicant’s representative submitted that the Applicant did not fail the character test as contained in s 501(6)(a) by challenging the interpretation normally given to s 501(7)(e).
The Applicant submitted that he could not have a substantial criminal record if he had been acquitted of the crime on the grounds for insanity and/or if, at the time of the hearing, he was not detained in a facility or institution.
In relation to the first limb, the Applicant sought to rely upon elements from the second reading speech delivered on 11 November 1998.
Extracts referred to included:
“The purpose of this bill is to ensure that the Government can effectively discharge its fundamental responsibility to prevent the entry and stay in Australia of non-citizens who have a criminal background who have criminal associations”.[84]
[84] Applicant’s closing submissions, 2.
The speech also refers to concerns with non-citizens who “commit crime”, have “substantial criminal backgrounds” or have “criminal associations”.
It was submitted that because a person who is acquitted on the ground of insanity is not defined as a criminal and does not have a criminal record it was not the intention of Parliament to deem such a person to be of bad character.
However, despite the Applicant’s representative seeking to rely on the second reading speech, s 501(7)(e) states:
A person has a substantial criminal record if a person has been acquitted of an offence on the grounds of insanity and as a result has been detained in a facility or institution.
But to submit that acquittal of a criminal offence on the grounds of insanity cannot amount to a substantial criminal record by calling into aid the second reading speech ignores the clear words of s 501(7)(e) which must be read as the intent of the legislature. It is unambiguous and as such there is no uncertainty which could give rise to the use of the second reading speech.
It was also submitted that because Applicant is not currently under detention in a facility, that s 501(7)(e) doesn't apply because “has been detained,” should be read as currently been detained and cannot refer to “has been in the past been detained”.
I also do not accept this second limb. If Parliament had intended to only refer to people currently detained “is” should appear instead of “has”.
Accordingly, I find that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.
Should the decision to cancel the Applicant’s visa be revoked?
In considering whether to exercise the discretion to cancel the Applicant’s visa in s 501(2) of the Act, the Tribunal is bound by s 499(2A) 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 (“the Direction”) has application.[85]
[85] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides 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.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they 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; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[86]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[87]
[86] [2018] FCA 594.
[87] Ibid, [23].
BACKGROUND and offending
The Applicant was charged with one count of murder in respect of the death of his mother and on 22 March 2013 the jury returned a verdict that the Applicant “had committed the act charged but is not guilty on the ground that he was insane at the time so as not to be responsible according to law”.
The circumstances of that incident were that the Applicant, who was living with his mother at the time, strangled her causing death while suffering from an acute psychotic episode.
The Coroner made the following findings with respect to the death:[88]
“I find, in accordance with the evidence in the investigation and jury verdict, that [the Applicant] caused the death of [the Applicant’s mother]. He did so while in an acutely psychotic state such that he did not know that the act of causing her death was one that he ought not to do. I am satisfied that there was no involvement of any other person.
I note that before his mother’s death, [the Applicant] had never been assessed or treated in respect of his mental health. The evidence indicates that in 2003 he developed unusual and persistent beliefs regarding regeneration of the human body, and that these beliefs became delusional. His family and others were aware of his unusual beliefs and were distressed by them. In the days leading to the death of his mother it appears that his condition worsened significantly such that he suffered auditory and visual hallucinations and bizarre delusions.
The psychiatric evidence suggests that this worsening of his condition may have been due to the progression of his illness, as well as a possible contribution by substance use.
[The Applicant] was subsequently able to express some remorse for causing the death of his mother. Dr Walton stated, that “He is nothing short of aghast that he has killed his much loved mother.” However the evidence indicates that [the Applicant] subsequently remained with entrenched deluded ideas. Dr Evenhuis suggests that the most likely diagnosis of his mental illness is paranoid schizophrenia”.
[88] G-documents, 47.
The Honourable Justice Wood imposed a restriction order pursuant to the s 21(1)(a) of the Criminal Justice (Mental Impairment Act) 1999 (Tas).
The Applicant also has the following criminal record:

Date Charge Result

02/02/2000 Common assault
Recog s 556A: $1,000

2 years

25/02/1987 Fail to furnish information as required Fine: $200

31/12/1986 False name Fine: $50

31/12/1986 Refuse to supply or provide name and address Fine: $50

31/12/1986 No motor drivers license Fine: $40
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires 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.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
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.
The Nature and Seriousness of the Applicant’s Conduct to Date
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 a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
I found the result of the Applicant’s action to be very serious and, subject to the likelihood of reoffending, to mitigate strongly against revocation. I agree and adopt the findings of the Delegate below:
“[The Applicant] had a minor criminal history prior to causing the death of his mother. In 1986, he was convicted of no motor drivers license, refuse to supply or provide false name and address, and false name and fined. In 1987, he was convicted of fail to furnish information required and fined. In 2000, [the Applicant] was convicted of common assault and a two year recognizance [bond] was ordered. Given these offences are historical (dating from 21 to 35 years ago) and are relatively minor (attracting no sentences of imprisonment), I attach minimal weight to them in my decision.
I turn now, then, to [the Applicant’s] conduct that caused the death of his mother. On 22 March 2013, in the Supreme Court of Tasmania, a jury returned a verdict that [the Applicant] ‘committed the act charged but is not guilty on the ground that he was insane at the time so as not to be responsible according to law’ with respect to one count of murder.
In respect of that verdict, the Honourable Justice Wood ordered that pursuant to the Criminal Justice (Mental Impairment) Act 1999, a restriction order required [the Applicant] ‘to be admitted to and detained in a secure mental health unit until the order is discharged by the Supreme Court’. On 11 June 2013, having considered materials provided to the court, the Court gave reasons and affirmed the restriction order made on 22 March 2013.
A Magistrates Court of Tasmania (Coronial Division) Record of Investigation into Death (Without Inquest) dated 1 August 2016 outlines the events pertaining to the death of [the Applicant’s] mother, [omitted]. All the following information in Nature and seriousness of conduct is drawn from the Record of Investigation into Death.
The Coroner found that [the Applicant’s mother] died as a result of manual strangulation and smothering by [the Applicant] while he was suffering from an acute psychotic episode. The cause of [the Applicant’s mother’s] death was asphyxia. She was 77 years of age when she died at her residence, sometime between 22 April 2012 and 23 April 2012.
[The Applicant] was living with his mother on an irregular basis. He had returned to stay with her approximately two weeks prior to her death. The evidence suggests [the Applicant] manually strangled and smothered his mother in his bedroom, then dragged her along a hallway and placed her in her own bed before leaving the scene.
On the morning of 23 April 2013, two of [the Applicant’s] daughters tried to contact her by phone. When they were unable to make contact, one daughter attended [the Applicant’s] residence and found her mother. Ambulance and police attended the scene.
[The Applicant] returned to the scene while his sister was providing an affidavit to a police officer. [The Applicant] spoke to his sister and the police officer introduced herself to [The Applicant]. [The Applicant] said ‘I killed my Mum’ to the officer.
[The Applicant] was taken to a police station for a formal interview. He told officers he had killed his mother by strangling her because she was ‘pure evil’. His interview and speech were unusual, his responses to questions made little sense and it appeared as if he was responding to hallucinations rather than police.
Expert evidence before the jury from psychiatrists Dr Michael Evenhuis and Dr Lester Walton was that [the Applicant] was acutely psychotic at the time he caused hismother’s death. Dr Evenhuis suggested the most likely diagnosis was paranoid schizophrenia. Dr Walton said [the Applicant] was ‘nothing short of aghast that he has killed his much loved mother’.
The Coroner noted that v had never been assessed or treated with respect tohis mental health prior to his mother’s death. The evidence indicated in 2003, [the Applicant] had developed unusual and persistent beliefs regarding regeneration of the human body, with these beliefs becoming delusional. His family and others were aware of, and distressed by, his unusual beliefs.
In the days leading to the death of his mother it appears that [the Applicant’s] condition significantly worsened such that he suffered auditory and visual hallucinations and bizarre delusions. Psychiatric evidence suggested the worsening of [the Applicant’s] condition may have been due to the progression of his illness as well as a possible contribution by substance use.
The Coroner acknowledged [the Applicant’s] remorse and noted that his family’s ‘suffering has been enormous and yet they have been remarkably understanding and compassionate in relation to [the Applicant’s] illness’.
The Coroner found that ‘[the Applicant] caused the death of his mother while in an acutely psychotic state such that he did not know that the act of causing her death was one that he ought not to do’.
In January 2016 and again in September 2016, [the Applicant] wrote to Minister Dutton.
He advised Minister Dutton that he was held at the Wilfred Lopes Centre under a Restriction Order after having been found not guilty of murder due to insanity. [The Applicant] asked about his status as a permanent resident and whether he had the right to reside in Australia, noting he did not appear to meet the character requirements for Australian citizenship. In November 2016, the Department advised [the Applicant] that the Minister appreciated [the Applicant] bringing this to his attention. The Department said an assessment had not been made to determine if [the Applicant] failed the character test under s501 of the Migration Act 1958.
I am guided by 4(2) of the Direction, which defines ‘serious conduct’ as including behaviour or conduct of concern that does not constitute any criminal offence. I find [the Applicant’s] conduct in causing the death of his mother constitutes serious conduct. I accept his conduct was not a criminal offence, noting the jury’s verdict that [the Applicant] ‘committed the act charged but is not guilty on the ground that he was insane at the time so as not to be responsible according to law’”.[89]
[89] G-documents, 10-11.

Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.
The Applicant’s mother at the time of her death was 77 years old.[90] She was a disability pensioner and the Applicant lived with her on an irregular basis.[91] I consider her death to constitute a crime against a vulnerable member of the community.
[90] G-documents, 45.
[91] G-documents, 45.
Despite the fact the Applicant was not convicted or sentenced by the court I find, taking into account the above considerations, the Applicant’s conduct must be viewed very seriously.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
In consideration of sub-paragraph (d) there is no evidence to suggest any criminal behaviour on the Applicant’s part, apart from a common assault upon the Applicant’s then wife and in fact this matter which involved no criminality, appears to be a single isolated incident. I am not aware of any other behaviour on behalf of the Applicant which gives cause for concern.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending
Not only did the Applicant not provide any false or misleading information to the Department, he on two occasions, and of his own accord, raised with the Minister the question of his right to remain in Australia. Furthermore, the Applicant was advised by the Department that the Minister appreciated the Applicant bringing this matter to his attention.
I note the Applicant did not declare minor criminal convictions on an incoming passenger card in 2002, but I place no weight upon this matter because the Applicant was of the belief that being placed on a good behaviour bond did not constitute a conviction. I do not consider it unreasonable that he held that belief given his lack of legal training.
I do not consider factors (c), (e) or (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.
I also note the following submission made by the Respondent:
“The bifurcation referred to in Anand is to be resolved by having regard to the ‘the Government’s view’ that the tolerance of risk of future harm becomes lower as the seriousness of the potential harm increases and some conduct, and the harm that it would cause, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable (see paragraph 8.1.2(1) of the Direction). See also Re Wang and MIMIA [2003] AATA 555 at [107], Wang v MIMIA [2004] FCA 108 at [86]; V324 of 2004 v MIMIA [2004] FCAFC 259; Re Ong Chin Jui and MIBP [2017] AATA 2707 at [48] and at [66] re the seriousness of attempted murder as a crime”.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(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 their 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.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Having regard to the nature of the Applicant’s conduct in the past, namely being conduct of a violent nature against a woman, I consider that any future conduct of a similar nature would have the potential to cause physical and/or psychological injury to members of the Australian community.
Likelihood of engaging in further criminal or other serious conduct
In considering the likelihood of the Applicant reoffending, I have considered not only the evidence in the G-documents but also the evidence given during the hearing. In particular, I have had regard to the reports provided by Dr Patchett to both the Supreme Court of Tasmania (20 July 2021) and Department of Home Affairs (12 July 2021). Those reports together with Dr Patchett’s evidence referred to at [59]-[69] satisfy me that there is a low risk of the Applicant reoffending.
In particular, Dr Patchett in his report to the Supreme Court, noted the Applicant is well and is in remission with respect to his diagnose of Schizophrenic illness. He noted there have been “not overt markers of mental illness that have been noted by the staff at the Wilfred Lopes centre, nor have there been signs in the community. He has remained abstinent from all substances including alcohol and cannabis”.[92]
[92] G-documents, 83.
Furthermore, the Applicant has been in the community and very favourable reports have been provided by those who know him, as set out in the evidence of Mr Robertson, Ms Brown, and Mr Callander.
In reaching this conclusion I have taken into account the matters raised by the Respondent’s representative including:[93]
[93] Respondent’s dot point submissions 17 January 2022, 2-7.
·There appears to be a difference in assessment of risk between Dr Patchett (’low’) and the assessments of ‘moderate’ in the WLC HCR-20s completed on 28 July 20 (WLC 2403) and 21 October 2021 (WLC 275 of second bundle).
·There have been different formulations of the applicant’s condition, though Dr Patchett said it would not have made any difference to the applicant’s treatment.
·Relevant to risk, although psychotic symptoms appeared to cease in or about 2013, there was concern amongst treating staff at WLC, in 2016 and 2017 in particular, that there had been a reoccurrence of mild psychotic symptoms during periods of stress – see the Mental Health Tribunal’s recitation of Dr Kavanagh’s evidence at T4, E2, p63.
[…]
·Having ceased taking antipsychotic medication (Olanzapine) in July 2013 (WLC 77), he resisted suggestions that he recommence such medication, did not do so until 15 October 2019 and resisted suggestions from his treating psychiatrist that it should be increased to a therapeutic dosage: eg, see:
[…]
·Although he is taking medication now, given his reluctance to do so, it would be open to the Tribunal to find that there is a risk that he may cease taking the medication in the future, which Dr Patchett explained would increase the risk of a relapse.
·It ‘is not possible to predict recidivism with unequivocal accuracy’ (Patchett report, T4, F2, p83) and there is evidence that the applicant is vulnerable to psychotic phenomena associated with stress: see WLC 1068 16/9/19 – noted that Dallas Hope, psychology, challenged the applicant ‘on the certainty with which he professed knowledge of his future behaviour’, ‘the impossibility of certainty regarding the future’ and the applicant’s ‘belief that he can effect control through intention.’ He stated that the applicant ‘could not predict the qualitative aspects of any psychotic/delusional relapse’ and it appeared that ‘his brain was/is vulnerable to psychotic phenomena’ .He referred to the stress-vulnerability model, ‘emphasising the neurochemical impact of events (e.g., how dramatically chemistry would change in reaction to the news a loved-one had been incinerated in a MVA).’
·A significant factor affecting the risk of a relapse of the psychosis is that abstinence from illicit drugs is not guaranteed.
[…]
·The circumstances of the commencement and continuation of drug use are relevant to an assessment of the risk of relapse.
·The applicant may have been abstinent while on a restriction order and either held in a secure facility or subject to regular drug checks but the question is what will happen if the applicant is released into the community without these constraints (cf WLC 1046, 7/8/19). Of relevance to this assessment are 2 occurrences during the applicant’s trip to Launceston in September 2021. Dr Patchett pointed out the need for strict compliance with leave restrictions. The applicant rang WLC in relation to having a coffee with Tim at a coffee shop while waiting for his bus because he thought he might have been a block further away than he needed to be (see WLC 1369). However, there is no evidence of him making contact in relation to the change from staying overnight with Andrew Heap in Beaconsfield, as required, to staying overnight with Mark Wells in Launceston instead, as revealed by Mr Wells in his evidence.
[…]
·The delegate noted a lack of ‘strong family and social supports which are critical to rehabilitation and remaining law abiding’ (T2, p21). See:
[…]
·Therefore, although the situation has improved from when he was cut off completely, apart from contact with staff and residents at Bethlehem House, only ever intended to be a temporary situation in preparation for transition to an SO in place of an RO, in reality contact is limited to one sister, Noreen, who he sees once or twice a month, and 2 old friends who live in the north of the State and who he has been able to visit only once.
Despite these matters raised, I note that three Tasmanian Mental Health Tribunal decisions were based upon evidence from a variety of health professionals who have treated the Applicant for many years. Despite some evidence of a degree of clinical debate about the Applicant’s diagnosis and medication, all the forensic psychiatrists have supported the Applicant returning to live in the community with support and supervision.
Furthermore, the Mental Health Tribunal determined that the Restriction Order was no longer warranted.[94]
[94] G-documents, 49-55.
Evidence of the Applicant’s behaviour in the community as set out at [50]-[58] indicates the Applicant has complied with his current Restriction Order and I am satisfied that as long as the Applicant does not use illicit drugs, he will not present a risk to the community. I am also satisfied that a Supervision Order would adequately manage the risk to the community, that his risk of future violence has been assessed as low, that he has been fully compliant with rehabilitative processes and I accept Dr Patchett’s view that the Applicant will continue to be fully compliant with the rehabilitative process.
Like Dr Patchett, I place considerable weight on the Applicant’s demonstrated compliance when subject to a Restriction Order for at least nine years of rehabilitative treatment.
I also consider when taking into account the Applicant’s evidence as well as that of all of the witnesses referred to above, that the risk of the Applicant breaching his Restriction Order or engaging in behaviour that places him at risk of further psychotic episodes is very low. In addition, I also refer to the evidence of Mr Robertson, who referred to the Applicant as a “model resident in every respect” and “could say without hesitating that the Applicant is not just an asset to [staff], but he is an assets (sic) to the men that come through [the men’s shelter]”.[95]
[95] Exhibit 3.
I also accept, as did Her Honour, that the Applicant has shown deep remorse and since that time, multiple psychiatrists, health professionals and the Mental Health Tribunal have attested the same.
Furthermore, I agree with the Delegate’s summary when finding the Applicant’s conduct must be viewed very seriously but noting that in “being unaware that his conduct constituted a wrongful act, the nature of his conduct is attributable to [the Applicant’s] psychiatric state at the time, rather than his innate character”.[96]
[96] G-documents, 12.
In assessing the risk that the Applicant will engage in conduct similar to that which caused the death of his mother, I consider it very relevant that the Applicant now appears to have strong family and social support as shown by the evidence of his sister, Mr W and Mr H.
I have considered the matters raised by the Respondent at [116] and the wording of the Direction at 8.1.2(1) but note that the Direction stipulates that the relevant risk may be unacceptable rather than must be unacceptable.
I consider this to be one of those rare cases involving the causing of a death where the application of Primary Consideration 1 does not automatically involve strong weighting in favour of the revocation of a visa.
I have set out in some detail above the reasons for my finding there is a very low risk of the Applicant reoffending and I also have noted that Applicant’s behaviour to be the result of a mental disease, which was undiagnosed at the time and is now being treated, rather than any innate behavioural characteristic.
For all the reasons set out above, I think it is highly unlikely that the Applicant will engage in further conduct that could pose risk to the safety of himself or others.
Conclusion: Primary Consideration 1
I find the nature and seriousness of the Applicant’s conduct to date weighs significantly against the revocation of the Applicant’s visa, but I find there is a low risk of him engaging in conduct that would risk his safety or the safety of others. In other words, I find the nature of the harm should the Applicant reoffend to be very serious but the risk to the community, is signifcantly reduced because of the low likelihood of the Applicant engaging in violent conduct. I find that the weight placed on this consideration mitigates moderately against the revocation of the Delegate’s decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Whether family violence occurred
For the purposes of the Direction, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. I find the Applicant’s conduct in causing the death of his mother was violent conduct that likely caused his mother to be fearful.
A jury returned a verdict that the Applicant ‘committed the act charged but is not guilty on the ground that he was insane at the time so as not to be responsible according to law’ with respect to one count of murder and the Coroner found that the Applicant caused the death of his mother while in an acutely psychotic state “such that he did not know that the act of causing her death was one that he ought not to do”.[97]
[97] G-documents, 47.
I find that the Applicant’s conduct involved family violence as defined in the Direction, as he caused the death of his mother while in an acutely psychotic state. However, I place a limitation on my finding, in acknowledgement of the fact that the Applicant did not know that the act of causing his mother’s death was one that he ought not to do. I consider that to be an isolated act and note that it was one of the many factors considered when assessing the likelihood of reoffending referred to earlier in this decision.
There appears to have been another incident of family violence in 2000 when the Applicant assaulted his then-wife during the breakdown of their marriage for which he received a good behaviour bond. The Respondent also referred the Tribunal to a risk assessment dated 11 October 2021 noted “he was not suffering any symptoms of mental illness at this time and his violent act was the results of interpersonal conflict and lack of behavioural controls in response to his feelings of anger”.[98]
[98] Respondent’s dot point submissions dated 17 February 2022, 7.

In applying the considerations outlined in paragraph 8.2(3) of the Direction, I find that while the Applicant’s conduct in relation to the death of the Applicant’s mother constitutes a trend in increasing seriousness of actions, noting that there has been no offending since 2000, the Applicant’s conduct can be distinguished in character because of the Applicant’s state of mind at the time and the underlying cause of the conduct. As noted by the Respondent, the Applicant was not suffering from any symptoms of mental illness at the time of the assault. I therefore place less weight on any trend of increasing seriousness and the cumulative effect of repeated acts of family violence.
I do, however, place significant weight on the Applicant’s rehabilitation since committing the last act of family violence. Since the Applicant committed the assault, the death of the Applicant’s mother has caused the Applicant to develop a hyper-awareness of his emotional state. He is subject to intense oversight, and there is vigilant monitoring of the Applicant’s mood and behaviour. The Applicant’s honesty when it comes to his mental health was described by Mr Callander to function as a form of ‘protective factor’ by enhancing the Applicant’s self-awareness.
In the Tribunal’s view, the context in which the Applicant was perceived to “lack behavioural controls in response to his feelings of anger” is now vastly different and the Applicant’s efforts to manage his mental illness are likely to mitigate any risk of the Applicant committing the type of violence in response to interpersonal conflict described.
Conclusion: Primary Consideration 2
In view of the fact that the only recent violence was a result of an undiagnosed mental disease which is now being treated and under control, I place moderate weight upon this consideration against revocation of the Delegate’s decision.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant did not submit that the best interests of any minor children will be impacted by the cancellation of his visa.
Conclusion: Primary Consideration 3
Accordingly, I attribute no weight to this consideration.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[99]
[99] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters.
The Direction explains that this consideration is about the expectations of the Australian community, rather than any expectation an individual within the community may have.
I am entitled to take into account the views of multiple forensic psychiatrists from the Wilfred Lopes Centre, other mental health professionals from the Wilfred Lopes Centre, State-wide Mental Health Service, staff at the Applicant’s men’s shelter, along with multiple members of the Mental Health Tribunal who have all made the decision that it is appropriate for the Applicant to return to living in the community.
As noted by the Delegate, those views are further supported by the Applicant’s family and friends.
I also consider it relevant that with respect to the charge of murder, the prosecution asked for a not guilty verdict due to insanity and there was only a short deliberation by the jury prior to returning that verdict.
Conclusion: Primary Consideration 4
Accordingly, I attach moderate weight to this consideration against revocation of the Delegate’s decision.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
Accordingly, I do not attribute any weight to this consideration.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
When considering the extent of any impediments the Applicant would face if removed from Australia to the United Kingdom, I take into account the following:
(a)The Applicant has available approximately $90,000 in savings and accordingly, any bridging time needed before receiving benefits available to him in the United Kingdom can be adequately covered with his own resources.
(b)Despite the medical assistance available in the United Kingdom as demonstrated by Exhibit 14, (Health Systems in Transition) the Applicant has spent the last nine years on a Restriction Order that requires him to live in a specialist facility with intensive psychiatric and specialist forensic treatment.
(c)His mental health treatment is highly specialised and involves a multi-disciplinary team, extensive clinical assessments and treatment decisions. I find the treatment to be extremely complex and was not provided with any evidence as to what extent, if any, similar treatment would be available to the Applicant in the United Kingdom.
(d)I am concerned that the treatment that is currently being provided is being done so pursuant to a Restriction Order, and I note the Applicant gave evidence that he had applied for transfer under the International Prisoner Exchange Program to ensure that the Restriction Order would be maintained. He also estimated that the waiting period for the transfer under this program was approximately two years.
(e)I recognise that the United Kingdom has a comprehensive National Health System, and it is likely that in time, the Applicant could receive similar supervision and treatment.
(f)I do not consider there to be any cultural or language barriers
(g)The Applicant has a sister living in the United Kingdom whom he says continues to be supportive of him.
(h)The Applicant has worked for significant periods in the United Kingdom in the past. If eventually deported to the United Kingdom, the Applicant had indicated an intention to get a heavy vehicle license and a secure job as a truck driver.
(i)The Applicant had identified Bristol as a suitable place to settle.
(j)Although he has a supportive sister in the United Kingdom, there was no evidence of relationships as close and supportive as those he has in Australia.
Overall, I place neutral weight on this consideration.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Applicant’s sisters urged the Court to treat him with kindness and compassion and Her Honour noted that the Applicant’s sisters showed understanding that he had a serious mental illness that had gone untreated for many years. The Applicant’s three sisters living in Australia attended the court hearing in March 2013 and after the verdict passed him a hand-written note which read “[the Applicant], your family loves and supports you, we are here for you”.[100]
[100] G-documents, 121.
One of his sisters said that she and her family had been deeply traumatised by the death of their mother and could not begin to comprehend the seriousness of the mental illness suffered by the Applicant, that was not known at the time by the Applicant or any member of his family.
Although the Applicant’s brother and one of his sisters do not wish to have any further contact with the Applicant at this time, I am satisfied that the Applicant’s family want him to be treated with kindness and compassion and have forgiven him for causing the death of his mother.
Despite the fact that only one family member has given evidence in support of the Applicant, I am satisfied that not only has the Applicant’s sisters living in Australia forgiven him, but that Mrs A would suffer significant trauma should he be removed to the United Kingdom.
Mrs A noted that after nine years at the Wilfred Lopes Centre and hundreds of hours of therapy, that her brother had learnt to cope with his heavy burden and that it would be heartbreaking to add to that burden by separating him from his family and friends:
“So if - we have now got here, and we are in a very, very good place together as brother and sister, the you - he is deported then all of that 10 years, and all of that work, the whole - everything that we went - everything that we went through means nothing, it means absolutely nothing, I go back to where I was the day I lost my mother and my brother because they - that's what I go back to. That day. Because it's happening all over again”.[101]
[101] Transcript, 69.
Mrs A’s trauma has been ameliorated by the healing process and her contact with her brother with the assistance of his mental health support team. Because of her restricted ability to travel, I find that Mrs A would suffer considerably should the Applicant be forced to return to the United Kingdom.
Overall, I apply significant weight to this consideration in favour of revocation of the Delegate’s decision.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has lived in Australia since the age of 12. Although he has spent periods of time living abroad, his current circumstances are such that he has a strong bond with his local community through his shared living arrangement at the men’s shelter and the support he receives as part of the conditions of the Restriction Order.
Prior to the years leading up to the Applicant’s conduct in causing the death of his mother, he had a successful career and made a positive contribution to the technology industry in Australia and abroad. The Applicant was continuously employed between 1975 and 2000, with the last twelve years being in an IT role, having been an IT manager for both Microsoft and Telstra. Mr H and Mr W both gave evidence at the hearing about the Applicant’s valuable skill set and how he assisted their respective businesses.
Since the death of his mother, the Applicant has expressed a strong motivation to undertake work as a peer support worker. The ongoing contribution the Applicant makes to the men’s shelter where he resides was noted by Mr Robertson, Ms Brown and Mr Callander in their evidence and it is clear that there is real potential for the Applicant to advance his peer support work in this environment where he highly valued. Accordingly, I afford more weight to the time the Applicant has spent in Australia, consistent with sub-paragraph 9.4.1(2)(a).
The Applicant has contributed positively to the community and from 2006-2008 he performed volunteer work with Colony 47 and assisted young people, many of them indigenous, who were at risk of homelessness. As a youth, he represented Tasmania as a member of the under 16 and 18 soccer teams. As noted above, he has now continued his contribution as a volunteer with the mentoring work he is performing at the men’s crisis shelter where he lives.
The Applicant has three siblings in Australia and maintains consistent contact with one of his sisters. He also has an emerging relationship with his niece, who wrote a statement before the Tribunal but did not give oral evidence. I acknowledge that since causing the death of his mother, the Applicant and those directly involved in his treatment have heeded caution in re-establishing connections with the Applicant’s family and friends. As a result, the Applicant has only recently began reconnecting with those who comprise his oldest support network.
Mr H regarded the Applicant’s family as his second family, and the Applicant was like his brother. The shared accommodation as adults and he was best man at the Applicant’s wedding, and he remembers the Applicant becoming one of Microsoft’s first Australian-based representatives. In evidence before the Delegate, he noted that the Applicant and his family have his love and support as they move forward and believes the Applicant can become an asset to his family and society in general once again.
Mr W who has known the Applicant for most of his life gave evidence at the hearing in this matter. Mr W believes that removing the Applicant from Australia would be cruel and as much a punishment for his family as it would be for him. It is evident that the conduct of the Applicant in causing the death of his mother, and the loss of connection for a period of some years, have not undermined the strength of the support that Mr H and Mr W have for the Applicant.

While I find the Applicant’s support network in Australia is currently relatively small, to some degree it can be attributed to the nature of the treatment the Applicant receives. Recently, the Applicant has taken steps to re-establish connections in Australia and this has been largely successful.
I allocate significant weight to this consideration in favour of the revocation of the Delegate’s decision.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Accordingly, this consideration is not applicable.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
a)international non-refoulement obligations: no application
b)extent of impediments if removed: neutral weight
c)impact on victims: significant weight in favour of revocation of the cancellation; and
d)links to the Australian community including the strength, nature, and duration of ties to Australia; significant weight in favour of revocation of the Delegate’s decision, and the impact on Australian; business interests: no application.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction:
a)Primary consideration 1: weight mitigates moderately against the revocation of the Delegate’s decision.
b)Primary consideration 2: moderate weight against revocation of the Delegate’s decision.
c)Primary consideration 3: no weight applicable.
d)Primary consideration 4: moderate weight against revocation of the Delegate’s decision.
e)Other considerations: international non-refoulement obligations: no application, extent of impediments if removed: neutral weight, impact on victims: significant weight in favour of revocation of the Delegate’s decision; and links to the Australian community including the strength, nature, and duration of ties to Australia; significant weight in favour of revocation of the Delegate’s decison, and the impact on Australian; business interests: no application.
In this matter, I find the significant weight attributed to the impact on victims and to the links to the Australian community including the strength, nature, and duration of ties to Australia outweighs the moderate weight attributed to Primary Consideration 1, 2 and 4.
Application of the Direction therefore favours the revocation of the cancellation of the Applicant’s visa.
Consequently, I do not exercise the discretion to cancel the Applicant’s visa.
Decision
The decision under review is set aside and in substitute the Tribunal decides not to exercise the discretion in s 501(2) of the Migration Act 1958 to cancel the Applicant’s visa.

I certify that the preceding 191 (one hundred and ninety-one) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

.....................[sgd]...................................................
Associate

Dated:
Date of hearing:

22 February 2022

13, 14 and 17 January 2022

Counsel for the Applicant

Solicitor for the Applicant

Ms Claire Wong

Dobson Mitchell Allport

Solicitor for the Respondent
Mr David Wilson

Australian Government Solicitor

Annexure A – List of Exhibits

Exhibit No	Document	Date	Party	Date Tendered
01	T-documents	Various	Tribunal	13.01.2022
02	Wilfred Lopes Clinical Records	Various	Respondent	13.01.2022
03	Statement of Mr Robertson	Undated	Applicant	14.01.2022
04	Statement of Vickie Brown And Crisis, Relapse and Prevention plan for the Applicant	7 January 2022	Applicant	14.01.2022
05	Statement of Vickie Brown	8 December 2021	Applicant	14.01.2022
06	Letter of Peter Callander	16 December 2021	Applicant	14.01.2022
07	Statement of Ms Tracey Withers	10 January 2022	Applicant	17.01.2022
08	Statement 1 and 2 of Ms Cheree Madden	12 January 2022	Applicant	17.01.2022
09	Financial help if you’re disabled (GOV.UK)	Accessed 17 December 2021	Respondent	17.01.2022
10	Universal Credit Guide (GOV.UK)	Accessed 17 December 2021	Respondent	17.01.2022
11	Housing Act 1996 (UK) (two pages plus 51 pages)	11 November 2021	Respondent	17.01.2022
12	The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (8 Pages)	1 June 2006	Respondent	17.01.2022
13	Homelessness Code of Guidance for Local Authorities 2021 – 199 pages	12 October 2021	Respondent	17.01.2022
14	UK Health system review 2015 (155 pages)	2015	Respondent	17.01.2022
15	Procedural instructions – removal from Australia and post-removal support (12 pages)	30 October 2018	Respondent	17.01.2022
16	International profiles of health care systems 2020	December 2020	Respondent	17.01.2022
17	Healthcare in the UK (internationalstudentsinsurance)	Respondent	17.01.2022

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/8232

General Division )
Re: DMJN
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              A G Melick AO SC, Deputy President
DATE:   19 January 2022
PLACE:                    Hobart
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 27 October 2021 and in substitute decides to revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
........................[sgd]........................................
A G Melick AO SC, Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/8232
General Division	)

Date	Charge	Result
02/02/2000	Common assault	Recog s 556A: $1,000 2 years
25/02/1987	Fail to furnish information as required	Fine: $200
31/12/1986	False name	Fine: $50
31/12/1986	Refuse to supply or provide name and address	Fine: $50
31/12/1986	No motor drivers license	Fine: $40