Edwards and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 2985

Edwards and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2985 (20 August 2021)
Division:General Division
File Number(s): 2021/3749
Re:Joseph Lawrence Edwards
APPLICANT

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

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:20 August 2021
Place:Sydney

The decision under review is set aside and substituted such that the cancellation of the Applicant’s visa is revoked.
...................................[sgd].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – meaning of “nature” – risk of reoffending – expectations of the Australian community – impediments to removal – access to services and supports for mental health issues – strength, nature and duration of ties to Australia – consideration of cases involving schizophrenia before the Tribunal – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 501 and 501CA
CASES
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Egan and Minister for Home Affairs [2020] AATA 2632
Egan and Minister for Immigration and Border Protection [2017] AATA 2705
Egan v Minister for Home Affairs [2021] FCAFC 85
FYBR v Minister for Home Affairs [2019] FCAFC 185
JDDM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2472
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
MAH and Minister for Immigration and Border Protection (Migration) [2018] AATA 416
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Nguyen and Minister for Home Affairs (Migration) [2018] AATA 3726
PQSM v Minister for Home Affairs [2019] FCA 1540
R v Barlow [1997] HCA 19
Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Taivei v Minister for Home Affairs [2018] FCA 1129
The Queen v Keenan [2009] HCA 1
Vazquez and Minister of Immigration, Local Government and Ethnic Affairs [1989] AATA 165
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
SECONDARY MATERIALS
'A snapshot of psychology in Malta, the smallest country in the EU', American Psychological Association, March 2017
Direction no. 21 – Visa refusal and cancellation under section 501
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Mental Health Commission of New South Wales, Richmond Report - Inquiry into Health Services for the Psychiatrically Ill and Developmentally Delayed
National Mental Health Strategy, Fifth National Health and Suicide Prevention Plan
REASONS FOR DECISION
Chris Puplick AM, Senior Member
20 August 2021

In the matter of Rowe I had occasion to remark that:
The consideration of Mr Rowe’s application poses an exquisite dilemma for the Tribunal which can be stated simply: what is the correct and preferable decision to make regarding Mr Rowe who has an extensive criminal history but is also clearly suffering from a level of mental disorder which, together with his misuse of drugs, fundamentally explains the origins of much of his criminal behaviour.[1]
[1] Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708 at [2].
Exactly the same dilemma now faces the Tribunal in these proceedings.
THREE PARALLEL NARRATIVES
Visa issues
On 28 May 2021 a delegate of the Minister (the Respondent) made a decision to refuse to revoke the cancellation of the Class BF Transitional (Permanent) visa held by Mr Joseph Edwards (the Applicant).
The Applicant was born in Malta in July 1966 and arrived in Australia with his parents in June 1968. In 1985 the Applicant’s parents were granted Australian citizenship, however the Applicant himself was not included in their citizenship application and hence the Applicant has remained a non-citizen.
On 6 February 2015 the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because the Applicant’s extensive criminal history caused him to fail the “character test” as set out in that legislation.
On 12 February 2015 the Applicant sought to have that cancellation decision revoked and provided a submission in support of that application. That application was successful and on 18 February 2015 the cancellation decision was revoked.
The Applicant continued his offending behaviour and on 6 August 2019 his visa was again cancelled. The Applicant requested that this cancellation be revoked and again submitted material in support of that application. However, on 28 May 2021 the application for revocation was refused.
On 8 June 2021 the Applicant sought a review of that decision in this Tribunal where the matter was heard on 10 August 2021.
Subsequent to that event, the Applicant was placed under the care and control of the Public Guardian (see below) which is now responsible for the management of his affairs.
In these proceedings the Applicant was represented by counsel. The Applicant himself did not appear before the Tribunal, all parties accepting that his mental health state was such that he would not have been able to participate meaningfully in the procedures of the Tribunal, nor indeed to understand what was actually happening.
Mental health issues
In parallel with the above narrative there is a second and separate narrative as follows.
In October 1985 the Applicant (then aged 19) was admitted to Rozelle (Psychiatric) Hospital where he was described as “floridly psychotic” and diagnosed as suffering from schizophrenia, together with issues arising from his polysubstance abuse,[2] which commenced with the use of cannabis and heroin at the age of about 16 years.[3] The Applicant has continued to use illicit drugs and in particular has been a heavy user of “ice” (crystal methamphetamine).
[2] Tender Bundle at 73.
[3] Tender Bundle at 81.
Since that date the Applicant has been assessed by a number of highly qualified psychiatrists and forensic psychiatrists, each of whom has confirmed that the Applicant suffers from severe mental health problems.[4]
[4] Dr Robert Lewin’s (Consultant Psychiatrist) Report, Tender Bundle at 67-76; Dr Olav Nielssen’s (Consultant Psychiatrist) Report, Tender Bundle at 54-56 and 77-80; Glenn Chapman’s (Clinical Nurse Consultant, Mental Health) Report, Tender Bundle at 402-405; Dr Tobias Mackinnon’s (Consultant Forensic Psychiatrist) Report, Tender Bundle at 199-202 and 398-401.
Most recently, the Applicant has been assessed by Mr Tim Watson-Munro whose extensive report, dated 5 August 2021, is in evidence before the Tribunal.[5]
[5] Mr Tim Watson-Munro’s (Consultant Psychologist) Report (5 August 2021) attached to Applicant’s Statement of Facts, Issues and Contentions.
On a number of occasions treating psychiatrists have recommended to the Courts that the Applicant be found to be a person who should be defined as “mentally ill” under the provisions of the Mental Health Act 2007 (NSW) and thereafter be made subject to an order under section 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW). This allows (inter alia) a person who a Magistrate finds to be “a mentally ill person” to be detained in a mental health facility for assessment or to be made subject to a Community Treatment Order for the management of their mental health. Several such orders were made at various times.[6]
[6] Tender Bundle at 167, 300 and 343.
However, on 30 June 2020 the NSW Civil and Administrative Tribunal (NCAT) made an order under the Guardianship Act 1987 (NSW) that the Applicant be placed in the control of the Public Guardian. This guardianship arrangement lasted until 30 June 2021 whereupon it was temporarily extended by an Adjournment Order until arising again for formal review[7] following any decision made in this Tribunal.
[7] Statement of Ms Jessica Falla (NSW Public Guardian) at 25.
The NCAT order was made on the application of Dr Jillian Spencer, who is a psychiatrist and the Medical Director of the International Health and Medical Service (IHMS) which is the service responsible for the provision of health care at the Villawood Immigration Detention Centre where the Applicant was resident at the time.[8]
[8] Ibid at 3.
This order gives the Public Guardian the role of deciding where the Applicant is to live, what health care he is to receive and what decisions should be made about services provided to him. In addition, the Public Guardian is charged with making decisions about the Applicant’s legal services and is to act as advocate on his behalf.
Mr Watson-Munro’s report is the most contemporary assessment of the Applicant but it should be noted that none of his findings do other than confirm the earlier diagnoses made by Drs Lewin,[9] Nielssen,[10] Mackinnon,[11] Lienert,[12] and Hartman[13] or any of the Pre-Sentencing or Parole Reports.[14] They are all consistent on the nature of the Applicant’s illness.
[9] Tender Bundle at 67-76.
[10] Ibid at 54-56 and 77-80.
[11] Ibid at 199-202; 398-401.
[12] Statement of Ms Falla at 96-102.
[13] Ibid at 89-94.
[14] Tender Bundle at 17-19, 271-278, 334-337 and 402-405.
The Applicant has been hospitalised a number of times due to his mental illness, the most recent being for a period of six days in March 2020 when he was admitted to Liverpool Hospital Mental Health Unit from the Immigration Detention Centre at Villawood. While at Liverpool he was subject to some cognitive testing which established/confirmed that “he has frontal and global deficits reflecting his chronic mental illness.”[15]
[15] Statement of Ms Falla at 100.
Criminal record issues
There is no dispute between the parties that the Applicant has an extensive history of criminal offending and grossly antisocial behaviour. This record is set out at length in reports before the Tribunal[16] and in both parties’ Statement of Facts, Issue and Contentions.
[16] Supplementary G-documents at 11-15.
His offending behaviour commenced while still a juvenile and before any diagnosis of his mental illness was made. In total the Applicant has appeared before the Courts on 33 occasions and been found guilty or convicted of 69 offences.
The Tribunal reproduces the summary of the Applicant’s offences which was outlined by the Minister’s delegate in making their non-revocation decision on 28 May 2021. It is grateful to the Delegate for the comprehensive nature of the summary.
“Nature and seriousness of conduct
15. I have taken into account that Mr EDWARDS has a lengthy history of offending that began in 1983 when he was a minor and has convictions for a range of offending.
16. The Direction indicates that violent and/or sexual crimes, and crimes of a violent nature against women or children regardless of the sentence imposed, are viewed very seriously by the Australian Government and the Australian community.
17. On 7 May 1997, Mr EDWARDS was convicted in the District Court of New South Wales of malicious wound with intent to cause grievous bodily harm and sentenced to three years imprisonment. I note the sentencing remarks are not available as they have been destroyed. Notwithstanding the absence of details pertaining to Mr EDWARDS’ conviction for malicious wound with intent to cause grievous bodily harm, it is clear that this was an offence of violence and as such must be regarded very seriously.
18. Furthermore I find the three year sentence of imprisonment he received is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I consider that this sentence reflects the seriousness of the offence.
Other offences involving violence
19. I note that, in addition to his conviction of 7 May 1997, Mr EDWARDS has convictions for other offences involving violence.
20. Between 1983 and 2019, he was convicted of assault and rob, assault, common assault and assault occasioning actual bodily harm. While he received dispositions including good behaviour bonds, self-recognizance, imprisonment up to seven months, an intensive corrections order and on one occasion, no further penalty, which suggest these offences were not as serious as the one discussed above, they were also clearly matters of violence and as such must also be considered to be of a serious nature.
21. On 18 June 2018, Mr EDWARDS was convicted of the assault occasioning actual bodily and was sentenced to nine months in a mental health facility, as well as being ordered to comply with all prescribed medications, abstain from drugs and alcohol, and attend counselling.
Sexual offences
22. On 27 February 1991 Mr EDWARDS was convicted of sex intercourse with person under 10 years and indecent assault person under 16 years and in authority; his sentence was deferred upon entering into $1000 self-recognizance and placed on a three year good behaviour bond.
23. On 21 December 2016, Mr EDWARDS was convicted of commit act of indecency with person 16 years or over and sentenced to one month imprisonment.
Stalking offences
24. On 16 November 2015, Mr EDWARDS was convicted of stalk/intimidate intend fear physical etc harm and sentenced to custodial sentences of 10 weeks. The Court Attendance Notice dated 8 November 2015 indicates the offending involved a personal violence offence - Mr EDWARDS intimidated the female victim with the intention of causing her to fear physical harm.
25. On 21 December 2016, Mr EDWARDS was convicted of stalk/intimidate intend fear physical etc harm and sentenced to custodial sentences of 10 weeks and one month respectively Attachment A. There is no information before me to indicate whether the offending involved family violence.
Theft related offences
26. In 1985, 1991, 1999, 2014 and 2015, Mr EDWARDS was convicted of theft related offences that resulted in varied dispositions including fines and recognizance.
Property offences
27. In 2009, 2014, 2016 and 2019, Mr EDWARDS was convicted of property offences that resulted in dispositions including an intensive correction order, imprisonment up to one month, a good behaviour bond and no further penalty.
Summary offences
28. In 2012, 2013, 2015, 2016 and 2019, Mr EDWARDS was convicted of wilful and obscene exposure in/near public place/school. This offending resulted in varied dispositions including fines, good behaviour bonds and s10A convictions – no further penalty.
29. In 2011, 2013, 2014, 2015 and 2016, Mr EDWARDS was convicted of behave in offensive manner in/near public place/school and fined.
30. On 4 February 2019 Mr EDWARDS was convicted of behave in offensive manner in/near public place/school and placed on an intensive corrections order for nine months, ordered to attend a rehabilitation program or receive mental health treatment and comply with his medication regime including depot injections.
Breaches
31. On 28 November 1995 Mr EDWARDS was convicted of breach apprehended violence order (AVO). He was placed on a good behaviour bond, ordered to comply with the AVO and entered into $1000 self-recognizance. There is no information before me to indicate whether the AVO was granted as a result of any acts family violence or merely in apprehension of the possibility of such acts.
32. In 2013, 2015, 2016 and 2019, he was convicted of fail to appear in accordance with bail acknowledgment or undertaking and in 2015 of refuse/fail to comply with direction and received no penalty.[17]”
[17] G documents at 17-18.
There are several matters to be noted from this summary, in particular that the Applicant has been sentenced to numerous terms of imprisonment, many for a relatively short period of time and has also been required to attend mental health facilities.
It is also of note that in relation to the two “sexual offences” identified, while the descriptors of the offences might suggest a high degree of seriousness, the penalties imposed by the court do not reflect this characterisation. Indeed, the Sentencing Judge stated:
“I think that there is little fear that this offence, or this type of offence, will be committed by the defendant in future. He is under the care, as I say, of the Community Health Service and he will continue to be under their care and this includes I take it, regular examination by a psychiatrist or other medical practitioner”.[18]
[18] Tender Bundle at 448-449.
This is in no way to minimise the impact of inappropriate sexual contact with a minor child but rather to be guided by what the Sentencing Judge had to say about the nature of the offence and indeed some of the findings which were not adverse to the Applicant.
The Applicant is the youngest of 11 children and while he appears to have had a stable childhood,[19] there is also evidence of some conflict with family members[20] and with a (male) partner with whom he lived for several years and who became the victim of a serious assault.[21]
[19] Pre-Sentence Report (18.11.1996), Tender Bundle at 17.
[20] Dr Robert Lewin’s Report, Tender Bundle at 71.
[21] Tender Bundle at 17.
THE EVIDENCE OF MR WATSON-MUNRO
Mr Watson-Munro is a highly experienced Consultant Psychologist who has worked in the area of forensic mental health for some forty years.
He was asked by the Applicant’s representatives to undertake a review of the Applicant’s medical and criminal history and to prepare a report for this Tribunal. Apart from a review of extensive documentation, Mr Watson-Munro conducted an interview with the Applicant on 3 August 2021.
Mr Watson-Munro’s report includes a diagnose of both Bipolar Disorder and Schizophrenia, both “severe psychotic illnesses”. He also notes polysubstance abuse and Anti-Social Personality Disorder. He reports that the Applicant claims that he has died several times; had various of his body parts replaced; that he had been brought back to life by and regularly speaks to Jesus. The Applicant cannot accurately recall details of his family; hears voices (commanding him to commit crimes[22]); experiences suicidal ideation and regards himself as a paedophile.[23]
[22] Tender Bundle at 68.
[23] Tender Bundle at 333.
Mr Watson-Munro gave oral evidence to the Tribunal. In that evidence he indicated that he assessed the Applicant as not competent enough to understand the proceedings of courts or Tribunals such as this (according to the “Presser” test standards).[24] He confirmed two findings set out in his report, in relation to the Applicant namely:
“It is clear there is a nexus between his psychiatric illness and his offending behaviour”
“Mr Edwards clearly requires medical, social and psychological support in the community.”
[24] A series of tests used to determine the fitness of an accused to face trial. R v Presser [1958] VR 45.
Additionally, his evidence was to the effect that:
(a)in the absence of appropriate and structured supports, whether in Australia or in Malta, in areas such a housing and medication management, the Applicant’s condition would “inevitably deteriorate”;
(b)the underlying mental health problems of the Applicant are inextricably linked with his abuse of illicit drugs, in particular cannabis and ice;
(c)the nature of the Applicant’s illness is such that it must be expected that he will continue to offend, although such offences are unlikely to be ones of serious violence or of a sexual nature, especially as it cannot be guaranteed that he will be drug-abstinent;
(d)the Applicant would benefit from being under the control of the Public Guardian especially if he were provided with stable accommodation and additional supports under the NDIS; and
(e)some improvement in his condition(s) could be expected if the Applicant were medication compliant and while this is difficult to achieve it is assisted by the fact that some of his medications can now be administered by depot injection.

In conclusion Mr Watson-Munro stated that the Applicant was “quite frankly, crazy”.
THE EVIDENCE OF MS JESSICA FALLA
Ms Falla is the Principal Guardian in the Office of the NSW Trustee and Guardian and has direct responsibility for the management of the Applicant’s affairs following the order made by NCAT on 30 June 2020. In her written submission and in oral evidence to the Tribunal she stated that:
(a)The Applicant remains under guardianship until the determination of this Tribunal and, if the Applicant remains in Australia an extension of the guardianship order will be sought, for a three year period, to give the Public Guardian control over the Applicant’s affairs as they relate to:
(i)accommodation;
(ii)health care;
(iii)medical/dental consent; and
(iv)legal and other services.
(b)If the Applicant remains in Australia the Public Guardian will be in a position to advocate for him to become a client of the National Disability Insurance Scheme (NDIS). She noted that:
(i)the Applicant is eligible to become an NDIS client,
(ii)the Public Guardian has a significant record of success in advocating for clients with the NDIS,
(iii)potential services and supports available to the Applicant under the NDIS include:
·supported accommodation
·social and community participation support
·behavioural support
·the provision of a full-time support co-ordinator.
In her statement Ms Falla further explains that:
“37. Mr Edwards is presently subject to a Guardianship Order. Therefore, decisions regarding Mr Edwards’ accommodation, health care, legal matters and services are made on behalf of Mr Edwards by the Public Guardian. Our role in substitute decision making will assist in effecting the necessary supports that Mr Edwards requires.
38. If more restrictive decisions are required, the NSW Civil & Administrative Tribunal can authorise the Public Guardian to make decisions regarding Restrictive Practices and/or Authority to Authorise emergency services to return Mr Edwards to his accommodation if he were to abscond. This can include consent to secure supported accommodation with locked exits and supervised community access. However, it is my experience that when a person has adequate supports in the community, their contact with emergency services, the health system and the criminal justice system reduces significantly. Based on this experience, it is not unreasonable to suggest that adequate care and support will drastically reduce Mr Edwards’ interaction with these services.”
In response to questions by the Respondent’s representative, Ms Falla conceded that, despite some ability to impose restrictions on the Applicant if under the care of the Public Guardian, there is no way in which it can be guaranteed that he would remain drug-free and the Public Guardian has no authority to insist on matters such as the Applicant undergoing drug-testing.
However, the Tribunal was impressed with Ms Falla’s evidence and in particular her report of the success of the Public Guardian at securing NDIS support for their clients. It was also impressed with Ms Falla’s personal level of engagement with and commitment to the Applicant in terms of understanding and responding to his needs.
MINISTERIAL DIRECTION 90
These proceedings are brought under section 501CA of the Act which provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
By statutory definition the Applicant does not pass the character test because he has “a substantial criminal record” (paragraph 501(6)(a)) which is defined as being created where a person has been “sentenced to a term of imprisonment of 12 months or more” (paragraph 501(7)(c)).
The Tribunal, standing as it does in the shoes of the Minister, may nevertheless set aside any decision not to revoke a visa cancellation if it is persuaded that there is “another reason why the original decision should be revoked” (sub-paragraph 501CA(4)(b)(ii)).
In making its decision, the Tribunal is bound to give effect to the statement of government policy which is set out in Ministerial Direction 90.[25] This is a set of instructions issued by the Minister pursuant to subsection 499(1) of the Act and any decision-maker (in this instance, the Tribunal) “must comply with a direction” so given (subsection 499(2A)) for a valid decision to be made.[26]
[25] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Ministerial Direction 90) commenced on 15 April 2021.
[26] PQSM v Minister for Home Affairs [2019] FCA 1540 at [22].
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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.
·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/
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Paragraph 8.2(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
At the outset the Tribunal accepts the position of both parties that in terms of the primary considerations, that the issue of the best interest of minor children in Australia is not relevant in this case.
Similarly, in terms of the other considerations no issues have been raised in relation to Australia’s international non-refoulement obligations vis-à-vis Malta, not are any victims identified upon whom any impacts need to be assessed. The one identified victim, of a serious assault in 1996, was the Applicant’s then partner who subsequently wrote a letter of support for the Applicant when he came before the Court.[27] As such, neither matter will be considered further in terms of their weight within the requirements of the Direction.
[27] Tender Bundle at 84.
The Tribunal is required to consider each of the remaining items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, it stated in SZJSS that:
[t]he weighing of various pieces of evidence is a matter for the Tribunal.[28]
[28] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criteria, where there are competing assessments, it becomes a matter of the Tribunal engaging in a process of “calculus”[29] to arrive at a final determination.
Primary considerations
[29] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Protection of the Australian community
There is conflicting evidence before the Tribunal that, on the one hand, the Applicant benefits from treatment, primarily by use of psychopharmaceutical such as Clozapine[30]and Olanzapine and that he can be compliant with his medication[31] while on the other it is reported that the Applicant demonstrates “poor engagement with treatment plans and follow-up, chronic medication non-compliance, violence and aggression when unwell and very poor insight into his illness and symptoms.”[32]
[30] Dr Neilssen’s Report (19 February 1997), Tender Bundle at 79.
[31] Mr Watson-Munro’s Report at 7.
[32] Statewide Community & Court Liaison Service, Justice Health and Forensic Mental Health Network, NSW Department of Health, 17 December 2018, Tender Bundle at 250.
At one stage it is reported by the Detention Centre authorities (30 December 2020) that: “Detainee EDWARDS also stated that International Health and Medical Services (IHMS) are trying to convert him to a female by giving the medication”[33] or that (on 16 September 2020) the Applicant “proceeded to tell me that he does not have mental illness and he does not need medication”[34] and at the same time the authorities report “Mental state was close to the best I have seen despite his recent drug use. ; Affable, calm and engaging. ; Tidily groomed.”[35]
[33] G-documents at 98.
[34] Statement of Jessica Falla at 97.
[35] Ibid.
The Applicant has not committed any further sexual offences of the nature which brought him before the court in 1991 and there is no clear indication that he would be likely to offend again in terms of similar offences, indeed this was stated by the Sentencing Judge:
“I think there is little fear that this offence, or this type of offence, will be committed by the defendant in the future.”[36]
[36] Tender Bundle at 449.
The Applicant committed two serious offences which involved inflicting injury on another party. The first of these involved an assault upon a person who was either the Applicant’s housemate or partner (the evidence on this is unclear) who was assaulted with the use of both an axe and a rock while the Applicant made verbal threats to kill him. For this offence the Applicant (who pleaded guilty) was sentenced to a term of imprisonment of three years.[37] It is unfortunate that the Tribunal does not have access to sentencing remarks in this instance but it does note that the victim of this assault wrote to the Court on 6 May 1997 requesting that “your Honour consider imposing a suspended sentence – on parole in lieu of a custodial sentence” and that as the Applicant lives with the victim and the victim has observed his (the Applicant’s),
“remarkable improvement, for the better, in Joseph’s attitude since his medication for schizophrenia has been changed by the prison hospital doctor’s [sic]” so that “I am prepared to assist him in any rehabilitation programmes imposed by the Court.”[38]
[37] Ibid at 5.
[38] Ibid at 84.
The second such offence (in 1991) was to assault his father with a baseball bat. There is again some confusing and contradictory evidence in this matter. A witness to the assault claims that the Applicant “started hitting (his father) with the baseball bat.”[39] However, the victim himself is reported in the Police statement as follows:
“Constable McCrory then said, ‘When I first arrived you told me that your soon hit you with a baseball bat. Is this true’.
I said ‘I can’t remember anything about that.”[40]
[39] Ibid at 481.
[40] Ibid at 479.
In the event, on a charge of common assault and malicious damage (to a window) the Applicant was placed on a good behaviour bond for 18 months.[41]
[41] Ibid at 472.
Each of these offences occurred over 25 to 30 years ago and since that date the Applicant has not committed any offences reaching anywhere near this same level of seriousness.
The Tribunal notes that while the sexual offence is described formally as “sexual intercourse with a person under ten years” and the assault on his partner as “attempted murder” both of those descriptors convey an impression not actually supported by the facts in question and indeed the Sentencing Judge was at pains to point this out in the first instance.[42]
[42] “[t]here is certainly no probative evidence to support a suggestion he had intercourse with this child in the way in which that word is used in the English language”. Tender Bundle at 448.
The Applicant makes a point that knowledge of these offences were before the National Character Consideration Centre in January 2015 when the Minister’s delegate invoked his discretion to revoke the mandatory cancellation of the Applicant’s visa which had taken place on 6 February 2015 following his sentence for the assault on his father.[43] It should of course be understood that the Ministerial Direction then in force (Number 65) was not in the same terms as the current Ministerial Direction although the criteria relevant to assessing the protection of the Australian community are essentially similar.
[43] Supplementary G-documents at 129-134.
The Respondent places considerable emphasis upon the likelihood of the Applicant resorting to the use of illicit drugs if released into the community and the risk that this engenders to embers of that community. This risk cannot be gainsaid. In support of these concerns the Respondent relies heavily on a series of reports by Dr Lienert who has been treating the Applicant during his period of detention in Villawood. It is true that a number of these reports have the Applicant telling Dr Lienert of his extensive use of drugs in the Detention Centre, but these self-reports are often contradictory. For example:
·11 November 2020 – use of ice each fortnight and cannabis 3 to 4 times a week;
·16 September 2020 – smoking ice and injecting buprenorphine;
·19 August 2020 – reports no use of drugs over past 6 weeks since his “supplier” (a fellow detainee) left, but had smoked marijuana one week ago;
·12 March 2020 – “lots” of ice and marijuana; and
·8 July 2020 – no drug taking for 8 weeks.[44]
[44] Annexure 18.12 to Statement of Ms Falla at 96, 97, 98, 101 and 99 respectively.
Mr Watson-Munro was of the opinion that such self-reporting should be regarded with a degree of scepticism as amounting to a form of “grandiose” self-identification. He was inclined to support comments referred to elsewhere in Ms Falla’s submission that since the advent of COVID-19 and the restrictions placed on movement and visitors to the Detention Centre there had been a reduction in the level of illicit drugs coming into the Centre[45] and that it would be unusual for Centre staff not to be alerted to such a high level of drug use in one detainee.
[45] Ibid at 105.
The Tribunal notes that among the other, perhaps exaggerated claims made by the Applicant to Dr Lienert, the Applicant “[i]ndicated he had been sexually active with 3 other men in compound. ; No sexual protection used but does not want STD testing.”[46]
[46] Ibid at 96.
The Tribunal is inclined to give little weight to the reported comments of the Applicant in these circumstances.
It is clear that the Applicant has “very poor insight into his illness and symptoms,”[47] has frequently denied that he has any form of mental illness,[48] and has been assessed by NSW Mental Health Services as having “a high loading on static risk factors” and that “it is anticipated that Mr Edwards will assault someone again on discharge”.[49]
[47] Report by Statewide Community & Court Liaison Service, NSW Health, Tender Bundle at 250.
[48] Dr Lienert’s Report (16 September 2020), Statement of Ms Falla at 97.
[49] Tender Bundle at 275 and 278.
The Tribunal finds that the Applicant does pose an ongoing threat to members of the public in terms of his antisocial and often violent behaviours and outburst and there is no indication that these will cease given that “there is a clear nexus between his psychiatric illness and his offending behaviour”.[50] There is the strongest possibility that unprovoked assaults on members of the public will still occur, with considerable physical and psychological impact on victims and that antisocial behaviours such as wilful and indecent exposure and use of indecent language in public places will continue, unfortunately, to be manifestations of his unwellness. This is compounded by the prospect of the Applicant continuing to use illicit substances which the Tribunal cannot rule out as being likely.
[50] Mr Watson-Munro’s Report at 3.
There is also an element of what Mr Watson-Munro refers to as “gendered” offences,[51] where the Applicant is more likely to make women the victim of his actions, and these offences are to be regarded by decision-makers as “serious” regardless of the sentence imposed.[52]
[51] Mr Watson-Munro’s Report at 5.
[52] Ministerial Direction 90 s 8.1.1(1)(a)(ii).
On the other hand, there is no indication that there is likely to be any increase in the severity or seriousness of the offences.
Tragically, the situation of this Applicant is not unique. The streets of most Australian cities are home to many people with psychiatric or mental illness. The public policy failure which resulted from too few community-based mental health facilities being built to complement the deinstitutionalisation movement of the 1980’s exemplified by the NSW Richmond Report[53] of 1983 has led to our streets and our prisons being the dumping grounds for those unwell people whose needs have not been met in the way which they should.
[53] Inquiry into Health Services for the Psychiatrically Ill and Developmentally Delayed.
A qualification – the “nature” of the conduct
Paragraph 8.1 of Ministerial Direction 90 is headed “Protection of the Australian community”. Paragraph 8.1.1 is headed “The nature and seriousness of the conduct.” It goes on to provide “In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, the decision-maker must have regard to the following:”. It then lists various specific items for consideration.
Paragraph 8.1.2 is headed “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. At sub-paragraph 8.1.2(2)(a) a decision-maker is directed to have regard to “the nature of the harm to individuals or the Australian community, should the non-citizen engage in further criminal or other serious conduct”.
It is to be presumed that the Minister intended that decision-makers be required to consider the “nature” of the conduct in question and the “nature” of potential future impacts as something separate from their “seriousness”. There would be no point in including both adjectives if this were not the case. There is almost no guidance by way of judicial or tribunal authority as to exactly what the term “nature” means in this context.

It is obvious that the same serious offence may have a different “nature” within different contexts. For example, deliberately shouting obscenities with an intent (mens rea) to offend, embarrass or disrupt is by its “nature” regarded differently when the speaker suffers from the clinical condition of coprolalia (a manifestation associated with Tourette’s syndrome)[54] and is unable to control their behaviour. Premeditated murder and involuntary manslaughter both result in the death of another party but they are, by their nature very different crimes and are treated differently in law depending on issues of culpability.
[54] Oxford Dictionary of Psychology (OUP, 2015, ed Andrew Coleman) at 170.
Again, there is a difference in the nature of an offence where a party has no understanding of the requirements place upon them or the consequences of their actions. Specifically, by way of example in relation to this Applicant the Tribunal notes that although he was formally “warned” of the consequences of future offending behaviour when his first visa cancellation was revoked, the Minister’s delegate on the second occasion wrote in his Reasons:
“I note that Mr EDWARDS reoffended following this revocation decision of 2015. I have taken into account that Mr EDWARDS is unlikely to have comprehended the gravity of the warning and the consequences of reoffending, due to his mental health and cognitive issues.”[55]
[55] Delegate’s Reasons at [67], G-documents at 25.
The nature of the offence may depend upon the type of offence committed, a state of mind or the consequence or outcome of the event.
In Barlow, the High Court stated:
The expression "offence ... of such a nature" in s 8[56] strongly suggests that the probability issue requires an examination of the actual facts and circumstances that give rise to the "act or omission which renders the person doing the act or making the omission liable to punishment".[57]
[56] Criminal Code Act 1899 (Qld) s 8.
[57] R v Barlow [1997] HCA 19 at [61].
In Keenan, the High Court again considered a matter arising under the same statute. Kiefel J (as Her Honour then was) referenced Barlow saying:
The circumstances of the offence, including its result and the state of mind which accompanied it define the offence as one of a particular "nature”. Their Honours explained that the unlawful striking of a blow will constitute an offence, the nature of which depends upon whether the blow causes bodily harm or grievous bodily harm or death and upon the specific intent with which the blow is inflicted.[58]
[58] The Queen v Keenan [2009] HCA 1 at [132]. Hayne, Heydon and Crennan JJ agreeing. Citations omitted.
In the same matter, Kirby J (in dissent) said:
By contrast, in requiring the jury to address their attention to the acts and omissions of the principal offender, the approach adopted in Barlow (and followed and applied by the Court of Appeal) permits a jury to consider the offence by the primary offender, as it was committed. It ensures consequent attention to the "nature" of the offence (as determined by the circumstances in which the "act" was done) the intention with which it was done, and its results.
The Tribunal considers that the conduct engaged in by the Applicant is of such a nature, having regard to the circumstances in which the conduct took place, the intent of the Applicant at the time and his degree of culpability that the otherwise “objective seriousness” (such as that referenced in the Respondent’s SFIC[59]) of those offences should be ameliorated when forming part of the Tribunal’s assessment of the weight to be given to the consideration of the protection of the Australian community.
[59] Respondent’s SFIC at [93(b)] citing SNXY and Minister for Immigration and Border Protection [2017] AATA 1745.
For the reasons given above, while the Tribunal recognises that there is a real degree of risk that the Applicant will offend again, and equally that some members of the public may be subjected to harm, in finding that this criterion must weigh against the Applicant it does not do so to a determinative effect.
Family violence
Ministerial Direction 90 (MD90) replaced Ministerial Direction 79 which had been operative since 2018. One of the principal differences between the two was that MD90 established a new and additional “primary consideration” to be addressed by decision-makers, namely the issue of “family violence”. This places a heavy responsibility on the decision-maker to give effect to the public policy which lies behind this direction, namely that family violence is to be taken as a serious matter.
The Applicant contends that “[t]here is no allegation that the applicant has ever committed family violence, so this is not a relevant factor in the present case.”[60]
[60] Applicant’s SFIC at [13].
Unfortunately, this is not the case. As already noted, on 15 August 1991 the Applicant was convicted of assaulting his father arising from an incident where the Applicant hit his father over the head, several times, with a baseball bat.[61] It appears that the Applicant received an 18 month good behaviour bond and a fine in relation to this incident.[62]
[61] Tender Bundle at 470-481.
[62] G-documents at 36.
Havin said so much, it remains the fact that the weighing of this criterion remains a matter for the Tribunal. MD90 states that “[t]he Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen”.[63] It also directs attention to both “the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness.”[64]
[63] Ministerial Direction 90 s 8.2(1).
[64] Ibid 8.2(3)(a).
This appears to have been a one-off incident. However, it resulted in an Apprehended Violence Order against the Applicant[65] who subsequently breached this order.[66]
[65] Tender Bundle at 482-483.
[66] G-documents at 36.
Similarly, one of the sexual offences, regardless of its character was committed against members of the Applicant’s family.
In regard to this criterion the Tribunal recognises that the Ministerial Direction establishes that any offence against a child, regardless of the sentence imposed must be regarded as serious. I must also consider whether family violence offences have been frequent, increasing in seriousness or as having cumulative effect while, at the same time treating the “Government’s concerns” regarding these offences “proportionately” to all these factors.
In this regard the Tribunal finds that the criterion must weigh against the Applicant but that it does not do so to any significant degree.
Expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.”
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that the Australian community expects non-citizens to obey Australian laws while in Australia; where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
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 (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative.[67] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
[67] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[68]
[68] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
In this respect, the Tribunal must put to one side the submission of the Applicant that “it might be thought that the Australian community would extend some form of sympathy to a person whose criminal offending has been the result of serious mental illness”.[69] Indeed, the whole purpose of the revisions in Direction 90 are to make sure that decision-makers do not give consideration to such matters.
[69] Applicant’s SFIC at [15].
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to his (or any other consideration) is a matter for the Tribunal itself to determine.
The expectation of the Australian community, by definition, must weigh against the Applicant but the Tribunal ascribes to this criterion only a limited degree of weight.
Other (relevant) considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman, “[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.” [70] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[71]
[70] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].
[71] Ibid at [26].
This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
“…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.” [72]
[72] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
Although these authorities refer to earlier versions of the Ministerial Direction they are still apposite in the consideration of Ministerial Direction 90.
Extent of impediments if removed
This criterion is central to the Applicant’s entire case for revocation. It amounts to a claim that the Applicant is a person suffering severe mental illness and that, if allowed to remain in Australia, the Public Guardian would take all necessary steps to ensure that the Applicant received the best possible treatment delivered according to Australian standards and possibly accessing the support services of the National Disability Insurance Scheme (NDIS). This is something the Applicant has never been able to do for himself.
By contrast, it is put to the Tribunal that to return the Applicant to Malta will necessarily result in his not being able to access services and supports of the same quality with resulting adverse consequences for him. Mr Watson-Munro writes:
“If [the applicant] is returned to Malta and the services that he needs are not available to him, he will inevitably deteriorate. Indeed, he may not survive at all, in the context of having no support mechanisms there, no access to treatment facilities and being floridly psychotic, in a country where he is lived since he was 2 years of age. [The applicant] is to all intents and purposes acculturated as an Australian, not a Maltese person. In this setting, his prognosis in the absence of treatment and services in Malta is considered to be bleak. In the alternative, if he is returned to Malta and these services are potentially available to him, as the letter of Mr Steve Libreri indicates, the focus in Malta is towards self-actualisation. [The applicant] has not demonstrated a great capacity to move his life forward in the absence of supervision and structure in his life. In all likelihood, because of the cultural nuances associated with treatment in Malta, he will fail and consequently, will not have the type of treatment I am advocating available to him.”[73]
[73] Mr Watson-Munro’s Report at 14-15.
There are a number of qualifications in Mr Watson-Munro’s report, starting with the qualifying conjunction “if”.
This then becomes a matter of the Tribunal weighing the objective evidence put before it about the quality of health care and mental health and social support services available in Malta.
In the first instance it must be remembered that the Applicant is a citizen of Malta. As such he is entitled to all the attendant privileges and rights of Maltese citizenship, including access of social support and health care. Malta has a publicly funded health-care system providing free health care as well as a private-health sector. Its first hospital was operational by 1372 and since 1530 has been the headquarters of the Hospitallier Knights of St John of Jerusalem.
Secondly, English is one of the two official languages of Malta and the Applicant would not be linguistically compromised in return to a country where he has not lived since a baby.
Thirdly, although the Applicant might find it hard to conform to some of the Maltese norms, cultural or social practices, he has demonstrated that he is equally incapable of doing so in relation to his life in Australia. The Maltese legal system derives essentially from the British legal principles, although trials are conducted in front of magistrates or judges rather than juries.
The Tribunal was provided with extensive information by both parties related to the health care and mental health care system and services in Malta. Included in this material was:
·a 2017 report by the European Observatory on Health Systems and Polices: Malta – Health System Review;[74]
·an Australian Department of Home Affairs report, as requested by the Respondent on “the availability of mental health services in Malta” (dated 25 September 2020),[75]
·Fact Sheets on Malta prepared by the Australian Department of Foreign Affairs and Trade;
·documents from the Government of Malta, Ministry of Social Security; and
·several journal and World Health Organisation reports on the aspects of social policies in Malta.[76]
[74] Annexure A, Respondent’s SFIC.
[75] Annexure B, Respondent’s SFIC.
[76] Witness Statement of Mr David Prince (4 August 2021).
In addition, the Applicant provided copies of emails between the Applicant’s representatives and Mr Steve Libreri, the Director of Child Protection Services in the government of Malta.[77]
[77] Witness Statement of Mr David Prince (5 August 2021).
What one can gather from a reading of these various reports is that Malta has a national health care (and mental health care) system which is constantly under pressure and usually under-resourced. The government of Malta is committed to continuous improvement in its system. There are provisions in Malta for the approval of compulsory mental health care under the supervision of the Commissioner for Mental Health. Basic health services are provided free of charge to citizens although private health insurance may be obtained. It is accepted that people with mental illness face a degree of societal discrimination in Malta but there are public campaigns designed to address this challenge.
In these respects, what is true about Malta is equally true about Australia, despite Australia being a far richer country than Malta.
The email exchange with Mr Libreri includes the following advice:
“On arrival to Malta, Mr Edwards would be eligible to receive all services that are not bound by contributions (NI). This means, that apart from social security benefits, he should be able to gain immediate access to all other services. I suspect that the most obvious ones would be the social and mental health services, who would take up the intake to see how they may support Mr Edwards. After having seen the mental health issues by Mr Edwards, I can infer that he would probably require highly specialized care, that would be offered by our Mental Health Services. That would be available immediately.
Social Services would be available on intake. Then, depending on the services he would have accessed there would be a time period required by the service to allocate. These vary, but a person may have to wait for a few weeks until a case is allocated. Free mental health care may also follow the same pattern, unless Mr Edwards is recovered to hospital in crisis, which would then activate an emergency intervention by the psychiatric team. But these situations only happen when the person is acting in a manner that could harm the self or others. It is not upon request.
So truthfully, Dr Prince, I believe that your client would be able to apply immediately, but would then have to wait the course of time until professionals can take up the case. I have seen cases in Malta being allocated within a few weeks up to a year in waiting. Again, service by service there is a variation.
What I can tell you is that all services will be offered, whether by the medical field or the social field, under the pretense that Mr Edwards wants them. I am not sure what risks Mr Edwards poses, but if Mr Edwards; does not comply with the agreement; fails to attend sessions as prescribed; or uses any behavior that may in any way intimidate or place risks on the professionals, the services will close the case. Depending on the quality of the interaction between client and service provider, is the service provision. I have seen people being blacklisted from services because of threats of violence or acts of violence by client to worker. I have also seen services terminate treatment because of non‐compliance. So, the duration of these services will ultimately depend on; the manner by which Mr Edwards uses these services, his level of compliance and the level of need. All this is obviously revised in moments of psychosis where the person is harming the self or others. I presume you have understood so far, that in those situations the person is no longer deemed fit to manage life on his own, and the State would take over and even introduce mandatory treatment.”[78]
[78] Witness Statement of Mr David Prince (5 August 2021) at [5].
In a newsletter of the American Psychology Association it is noted that “Malta holds one of the highest combined rate of psychiatrist beds per 100,000 population in community psychiatric units in Europe.”[79]
[79] 'A snapshot of psychology in Malta, the smallest country in the EU', American Psychological Association, March 2017.
The Applicant himself acknowledges that “[t]he country information obtained in relation to the resources available to the applicant in Malta is not entirely negative.”[80]
[80] Applicant’s SFIC at [18].

The Tribunal has, on occasions, revoked visa cancellation decisions where it is clear that an applicant would suffer significant health disadvantage by being returned to their country of origin.
The Tribunal is satisfied that without attempting to quantify the level of treatment, the Applicant will experience a far lesser level of treatment for his schizophrenia and other related conditions in Fiji than he would in Australia.[81]
That is clearly a chronic condition — whether or not correctly described as schizophrenia or schizoaffective disorder. It has led to cognitive decline, and requires ongoing medication and monitoring, which is unlikely to be available to MAH if he is returned to Iraq.[82]
On the basis of the evidence of Mr Nguyen, I am satisfied that he would face significant impediments if he returns to Vietnam… The availability of any government support and medical treatment is unknown.[83]
[81] JDDM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2472 at [89].
[82] MAH and Minister for Immigration and Border Protection (Migration) [2018] AATA 416 at [130].
[83] Nguyen and Minister for Home Affairs (Migration) [2018] AATA 3726 at [96].
The Federal Court has made it clear that it is one of the responsibilities of a decision-maker in cases such as this to address potential health consequences of returning an applicant to a country with significantly lesser or inadequate provision of necessary health services, where the absence of which might have serious deleterious impacts.[84]
[84] Taivei v Minister for Home Affairs [2018] FCA 1129 at [32]-[33] per Flick J.
However, a careful consideration of the material before the Tribunal does not support a similar finding in relation to the Applicant’s position were he to be returned to Malta. There is a sufficient degree of equivalence between the two health care systems and in both instances the critical question is not the level and availability of services but the willingness of the Applicant to engage with them in a meaningful way.
More significantly, the Tribunal must consider the reality of what is likely to occur if the Applicant is removed from Australia – although it notes that even if the Applicant’s visa is revoked, removal is not automatic and the Minister may make other determinations.
In the first place any flight from Australia to Malta would be long, especially as there are no direct flight connections. The Tribunal put it to Mr Watson-Munro as to how he thought the Applicant might cope in these circumstances and it agrees with his response that such a course of action would pose serious risk to the Applicant, flight crew and other passengers. The Tribunal notes that the Respondent makes the point that such a risk is also present if the Applicant remains in Australia.
Unless specific arrangements were made for the reception of the Applicant on arrival in Malta, it is likely that he would simply arrive, have no idea of what to do or where to go and in all probability end up on the streets and would no doubt shortly come to the attention of the law enforcement authorities, one way or another.
By contrast, the Tribunal accepts the submissions by the Public Guardian of the role which they would play in the potential future management of the Applicant and the strong possibility of NDIS-based support.
Taking all these matters together, the Tribunal finds that the Applicant would suffer considerable, perhaps extreme disadvantage and impediment if removed from Australia and it weights this criterion strongly in favour of the Applicant and to a substantial degree.
Links to the Australian community
Obviously, there are no “business interests” to consider but there are a number of factors which should be identified.
The Applicant has lived almost all of his life in Australia and has no knowledge of any other country, culture or community. From approximately 1988 until his first prison sentence in 1997 he appears to have been in some form of employment, primarily as a “machine operator”.[85]
[85] G-documents at 114.
It is impossible to establish the exact nature of the Applicant’s family relationships in Australia. He claims that his parents who he refers to as “Joe and Mary” [86] (consonant with his self-identification as “Jesus”: actual names Daniel and Lorenza[87]) are dead. There is no way of knowing if this is true or not. He claims to have seven sisters and three brothers. He stated to Mr Watson-Munro that at some stage he was married in 1992 to “an Aboriginal woman ‘Shanika’ and separated about a decade later.”[88] Again, no such claims can be verified.
[86] Mr Watson-Munro’s Report at 3.
[87] G-documents at 132.
[88] Mr Watson-Munro’s Report at 4.
It is unfortunate that the Applicant was not included in his parent’s (successful) application for citizenship, although at the age of 19 this may not have been a possibility. Even had citizenship been granted in 1985, the Applicant’s offending behaviour may well have led to a ministerial decision to revoke that.
The Respondent concedes, in effect, that this criterion weighs in favour of the Applicant but that it does so to only a minor degree. The Tribunal agrees with that assessment.
“Not limited to”
Ministerial Direction 90 at section 9 (Other considerations) states, inter alia (emphasis added):
“In making a decision under section 501 (1), 501 (2) or 501 CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):”
There then follows the criteria discussed above.
The phrase “but not limited to” and the reference to “where relevant” imposing a duty which “must” be undertaken, leads the Tribunal to a detailed consideration of how applicants with mental illness, specifically those with major diagnoses of schizophrenia have been assessed in relation to matters of revocation decisions.
CASES INVOLVING SCHIZOPHRENIA CONSIDERED BY THE TRIBUNAL
Dealing with the complex issues raised where the Tribunal must consider the balance between protecting the Australian community (and its expectations) with the fundamental human right of an individual not to be punished merely because they suffer from a mental illness, is one of the hardest tasks imposed upon a decision-maker.
It is of interest that a previous Ministerial Direction – No 21[89] – sought to give some guidance in this respect. In the paragraph dealing with Protection of the Australian Community it stated:
“(2.9) In relation to non-citizens who do not pass the character test due to convictions resulting from unsoundness of mind or insanity, the degree of recovery must be taken into consideration. If the non-citizen continues to rely on medication to control their condition, the non-citizen cannot be defined as having fully recovered. Moreover, the likely consequence of a non-citizen deliberately or accidentally not taking their medication must be considered.”
[89] Effective 23 August 2001. Superseded by Ministerial Direction no. 41 on 15 June 2009.
No guidance about the approach to be taken by decision-makers when dealing with non-citizens with significant mental health problems is to be found in Direction 90.
The Tribunal has determined a number of cases involving the question of whether or not to set aside a visa revocation where the issue of an applicant suffering from schizophrenia, or severe mental illness, has been in question. This Tribunal has undertaken a review of all such cases it has been possible to identify in the Tribunal’s database.
On a number of occasions it has been put to the Tribunal that where an Applicant has been clinically diagnosed with schizophrenia and where there is evidence that that mental illness was a primary cause of the offending behaviour, the Tribunal should give this serious consideration when making its final determination.
In the vast majority of cases which the Tribunal has been able to identify, where issues of schizophrenia have been considered in detail by the Tribunal and the Minister’s decision not to revoke the cancellation has been affirmed, the principal factors in the Tribunal’s determination seem to have been:
·that in terms of the protection of the Australian community, the applicant poses a high or unacceptable risk of reoffending. (Ince and Minister for Immigration and Multicultural & Indigenous Affairs[2005] AATA 92; Vazquez and Minister for Immigration, Local Government & Ethnic Affairs [1989] AATA 165; Toia and Minister for Immigration & Citizenship[2007] AATA 2078; QGMJ and Minister for Immigration & Border Protection (Migration)[2017] AATA 1537; Ausage and Minister for Immigration & Citizenship[2010] AATA 794; Bou and Minister for Immigration & Border Protection (Migration)[2017] AATA 2781);
·that a combination of the need to protect the Australian community from the risk of reoffending and the “necessary” weighing of the expectations of the Australian community against an applicant (Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2055; LKQD and Minister for Immigration and Border Protection [2018] AATA 2710; RZMW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1000; BQNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1186; Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421; Lesuma and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4587; Fonoti and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 866; DBKX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1520; VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1045; MMWM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 364; Aciek and Minister for Home Affairs [2018] AATA 2755; PYDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1138; Turanga and Minister for Home Affairs [2018] AATA 871; Batson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2343; FYBR and Minister for Home Affairs [2018] AATA 4281; Lansdowne and Minister for Home Affairs [2019] AATA 2448; Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4; Vural and Minister for Home Affairs [2019] AATA 579; Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1853; Hamm and Minister for Home Affairs [2018] AATA 3975; PTHD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 543; Downes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1037);
·that the applicant has been given and ignored multiple official warnings about their offending (Zaoui and Minister for Immigration & Citizenship[2011] AATA 515; Ali and Minister for Immigration and Citizenship [2011] AATA 780; Lesuma and Minister for Immigration & Citizenship[2007] AATA 1731);
·that the nature of the offences were particularly serious involving serious violence or sexual violence against minors (Thompson and Minister for Immigration & Border Protection (Migration)[2017] AATA 1245; Ashnarayan and Minister for Immigration & Citizenship[2011] AATA 667).
On the other hand, where the Tribunal has decided to set aside the visa revocation it has, in all instances, judged that the applicant’s risk of reoffending was low; that the mental illness was a major contributing factor in the offending behaviour reducing the applicant’s culpability; that setting aside the revocation was necessary in order to allow the applicant to access treatment and support to deal with their mental health issues or that the impact of removal on victims or family members should offset any other considerations. (Rowe v Minister for Home Affairs [2018] AATA 2708; TVCA and Minister for Immigration & Citizenship[2013] AATA 309; re Baharestan and Department of Immigration and Citizenship [2011] 122 ALD 219; Cutugno and Minister for Immigration & Multicultural Affairs[2006] AATA 1098; Drollet and Minister for Immigration & Citizenship[2010] AATA 854; Lavea and Minister for Immigration & Citizenship [2008] AATA 966; Paenga and Minister for Immigration & Citizenship[2010] AATA 814; Ozer and Minister for Immigration & Border Protection (Migration)[2017] AATA 956; MAH and Minister for Immigration and Border Protection [2018] AATA 416; Wytrwal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 5830; KMJM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2232; JDDM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs 2020) AATA 2472; Nguyen and Minister for Home Affairs [2018] AATA 3726; JL and Minister for Immigration and Border Protection [2018] AATA 754).
In August 2017 all Australian governments signed-off on the Fifth National Health and Suicide Prevention Plan part of which pledges to review the National Mental Health Policy 2008. Inter alia the Plan states:
“The majority of action taken to reduce stigma and discrimination against people living with mental illness has focused on people with mild to moderate mental illness, such as depression and anxiety. While there has been some improvement in community understanding of mental illness, there is still widespread misunderstanding and ignorance. Severe mental illness, such as schizophrenia and bipolar disorder, tends to be poorly understood, and attitudes towards people with severe mental illness are less positive.”[90]
[90] National Mental Health Strategy, Fifth National Health and Suicide Prevention Plan at 40.
DISCUSSION
The Applicant is one of those people to whom the Plan is addressed but the question becomes, should he be able to take advantage of the improvements in his mental health which are increasingly open to him, or has he forfeited that right by virtue of his conduct?
In Vazquez, Tribunal Deputy President Bannon opened his statement of reasons thus:
Francisco Soria Vazquez ("the applicant") is somewhat of a nuisance.[91]
[91] Vazquez and Minister of Immigration, Local Government and Ethnic Affairs [1989] AATA 165.
Joseph Edwards, this applicant, is in the words of his counsel’s submission “perhaps even a bloody nuisance.”[92]
[92] Applicant’s SFIC at [24].
Nevertheless, he is here, in Australia, and determining his fate is now a responsibility largely taken out of his own hands. It will be determined by actors such as the Minister, this Tribunal or the Public Guardian – at least in the immediate future.
In that respect the Tribunal is reminded of Prospero’s words in The Tempest in relation to another “nuisance” (Caliban), “This thing of darkness I acknowledge mine.”[93]
[93] William Shakespeare, The Tempest, 5.1.275-276.
In Vasquez the Deputy President also stated:
The task of the Tribunal is to reach a conclusion, having as its principal object the best interests of Australia. Included in those best interests as Smithers J. once observed is an element of compassion.
An exhortation of the same quality is made by Chief Justice Allsop in Hands:
The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[94]
[94] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
This is by no means to say that every offender has the right to call upon the natural compassion and decency of the Australian community to protect him or her from the consequences of their own actions, especially where other people have been injured or may be put at risk. Every case is an individual exercise of the discretion Parliament has vested in the decision-maker.
There is some parallel with the matters raised in Egan. In this case, the offender, (a former Catholic priest) had been convicted of numerous offences against children. The Minister cancelled his citizenship thus rendering him liable for deportation. At the time that he came before the Tribunal (Deputy President Hon Justice Stevenson) it was put on his behalf that he would be severely disadvantage if returned to Ireland where he had no support and was likely to reoffend whereas undertakings were given by the Catholic Church (via Bishop Comensoli) that if Egan were allowed to remain in Australia, the Church would provide for his welfare and supervision and would thereby minimise any chances of his reoffending. In the first instance the Tribunal set aside the decision of the Minister.[95]
[95] Egan and Minister for Immigration and Border Protection [2017] AATA 2705.
That decision was set aside on an appeal by the Minister and eventually remitted to the Tribunal where Deputy President Hon John Pascoe AC CVO affirmed the original Ministerial decision,[96] with that decision being upheld on appeal.[97]
[96] Egan and Minister for Home Affairs [2020] AATA 2632.
[97] Egan v Minister for Home Affairs [2021] FCAFC 85.
While the offences in Egan were much more odious and serious than in this case, the principle of being able to judge whether or not the public interest is best served by allowing a person to remain and perhaps benefit from treatment and supervision or be rendered into a situation where no support might be assessable and the chances of reoffending increased, remains on foot.
CONCLUSIONS
The Tribunal has made the following findings in relation to the criteria which it obliged to address as part of the Ministerial Direction:
·protection of the Australian community – weighing against the Applicant but not to a determinative degree;
·family violence – weighing against the Applicant but not to a significant degree;
·expectations of the Australian community – necessarily weighing against the Applicant but only to a limited degree;
·extent of impediments if removed – weighing in favour of the Applicant to a substantial degree; and
·ties to the Australian community – weighing in favour of the Applicant but only to a limited degree.
To this, the Tribunal adds its considerations of matters which it is authorised by the Ministerial Direction to address.
There is an opportunity, through the offices of the Public Guardian for this Applicant to have, perhaps for the first time in his life, the opportunity to have his mental health condition(s) addressed in a systematic, ordered and coherent fashion. There is the chance that he would cease to be homeless and a chance that his drug-taking habits might be addressed. Since the age of at least 19 it has been a matter of the downward slope of substances to schizophrenia to the streets to the “slammer”.
There is a chance to arrest this and turn it around in Australia - the Tribunal perceives no real chance of that taking place in Malta, through no failings on the part of the Maltese authorities. It is just the reality of the Applicant’s circumstances.

There is both the chance and the opportunity to inject a degree of humanity and empathy in terms of decision-making about a life which, through the impact of mental illness, has been largely untouched by such considerations.
Of course, all such conclusions are necessarily, speculative and dependent upon the effective intervention of the Public Guardian, but if no opportunity is provided to test the propositions, the truth of the matter will remain undiscovered.
A decision to revoke the visa cancellation may well, perhaps inevitably, lead to the Applicant’s “nuisance” behaviour being inflicted on other Australian residents. If further offences occur, they will undoubtedly come before the courts and there will be consequences for the Applicant. The addition of further serious offences and the possible imposition of any relevant sentence may well lead to a further visa cancellation[98] and perhaps a less sympathetic review of that decision if made. All that too is speculative.
[98] Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545.
Thus, the calculus arrived at by the Tribunal is that while the criteria of protection of the Australian community and its expectations carry some weight against the Applicant, they are not determinative, even when added to by the limited weight assigned to the criteria of family violence. On the other hand, the substantial and significant weight which the Tribunal assigns to the criteria of the impact of impediments if removed, augmented to a small degree by that related to ties to the Australian community, counting as they do in favour of the Applicant are sufficient to overbear those weighing against him.
The determination arrived at, limited to the clearly specified criteria of the Direction, in favour of the Applicant, gains further weight through the consideration of the other matters which the Tribunal has identified. In particular, consideration of mental health issues are not to be swept under another country’s carpet; rather, they require Australian decision-makers to understand and confront them and to incorporate them into their determinations which have impacts upon the lives of their disadvantaged fellows.
DECISION
The decision under review is set aside and substituted such that the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...................................[sgd].....................................
Associate
Dated: 20 August 2021

Date(s) of hearing: 10 August 2021

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Mr D Prince, Kinslor Prince Lawyers

Solicitors for the Respondent: Mr A Booth, Clayton Utz

Date(s) of hearing:	10 August 2021
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Applicant:	Mr D Prince, Kinslor Prince Lawyers
Solicitors for the Respondent:	Mr A Booth, Clayton Utz