Euf19 v Minister for Immigration

[2020] FCCA 912

FEDERAL CIRCUIT COURT OF AUSTRALIA

EUF19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 912

Catchwords:
MIGRATION – Bridging visa – cancellation – review of Administrative Appeals Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it had failed to have regard in accordance with law to mandatory considerations.

Legislation:

Migration Act 1958, ss.116, 474, 499

Migration Regulations 1999, reg.2.43
Domestic and Family Violence Protection Act 2010 (Qld)
Mental Health Act 2016 (Qld)

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: EUF19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3185 of 2019

Judgment of: Judge Cameron

Hearing date: 23 March 2020

Date of Last Submission: 23 March 2020

Delivered at: Sydney

Delivered on: 23 April 2020

REPRESENTATION

Counsel for the Applicant: Mr I Chatterjee

Solicitors for the Applicant: Olympus Law Partners

Counsel for the Respondents: Ms N Laing

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3185 of 2019

EUF19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Afghanistan who arrived in Australia on 31 October 2018.  On 17 October 2019 a delegate of the first respondent (“Minister”) cancelled the applicant’s Bridging E (Class WE), Subclass 050 visa, which had been granted when he made an application for a protection visa.  The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision. 

2. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

LEGISLATION

1. Subsection 116(1)(g) of the Act provides:

   116Power to cancel

   (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (g)a prescribed ground for cancelling a visa applies to the holder.

   …

2. Subregulations 2.43(1)(p) and (q) of the Migration Regulations 1999 (Cth) (“Regulations”) relevantly provide:

   2.43Grounds for cancellation of visa (Act, s 116)

   (1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   …

   (p)in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa—that the Minister is satisfied that the holder:

   …

   (ii)    has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or

   …

   (q)in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa—that:

   (i)     an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the holder is under investigation by that agency; and

   (ii)    the head of that agency has advised the Minister that the holder should not hold a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa;

   …

MINISTERIAL DIRECTION 63

1. Ministerial Direction 63 issued under s.499 of the Act (“Direction 63”) concerns the cancellation of visas pursuant to the combined operation of s.116(1)(g) and reg.2.43(1)(p) or (q). It relevantly states:

   3.  Contents

   This Direction comprises a number of Parts:

   Part one

   Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel a non-citizen's visa under either:

   •  section 116(1)(g) - relying on the prescribed ground in regulation 2.43(1)(p); or

   •  section 116(1)(g) - relying on the prescribed ground in regulation 2.43(1)(q).

   Part two

   Identifies considerations relevant to Bridging E visa holders in determining whether to exercise the discretion to cancel a non-citizen's visa under 116(1)(g) and regulation 2.43(1)(p) or (q).

   …

   4.3  Principles

   (1)Mandatory detention applies to any non-citizen who arrives and/or remains in Australia and who does not hold a visa that is in effect.

   (2)All non-citizens residing in the community are expected to abide by the law.  This is particularly relevant where the Minister for Immigration and Border Protection has used his personal non delegable power to grant a non-citizen in immigration detention a visa in the public interest.

   (3)The Australian Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis, and do not hold a substantive visa.  In the case of a non-citizen who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention, it is a privilege and not a right to be allowed to live in the community while their immigration status is being resolved.

   …

   (5)Bridging E visa holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigration status.  Similarly, where Bridging E visa holders are charged with the commission of a criminal offence or are otherwise suspected of engaging in criminal behaviour or being of security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.

   (6)The person's individual circumstances, including the seriousness of their actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.

   Part two - Section 116(1)(g) and regulation 2.43(1)(p)

   …

   5.1  How to exercise the discretion

   (1)Informed by the Principles in paragraph 4.3, a decision-maker must take into account the primary and secondary considerations in Part two of this Direction, where relevant, in order to determine whether a Bridging E visa holder should have their visa cancelled.

   (2)Both primary and secondary considerations may weigh in favor [sic] of, or against, cancellation of a Bridging E visa. 

   (3)The primary considerations should generally be given greater weight than any secondary considerations.

   (4)One primary consideration may outweigh the other primary consideration.

   …

   6.  Primary considerations

   (1)In deciding whether to cancel a non-citizen's Bridging E visa under the prescribed grounds in regulation 2.43(1)(p) or (q), the following are primary considerations:

   a.the Government's view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance against these regulations should be considered for cancellation, in accordance with the discretionary cancellation framework; and

   b.the best interests of children under the age of 18 in Australia who would be affected by the cancellation.

   6.1  The Government's view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously

   (1)In weighing the Government's view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously, decision-makers should have regard to the principle that the Australian Government has a low tolerance for criminal behaviour, of any nature, by non-citizens who are in the Australian community on a temporary basis, and who do not hold a substantive visa.  This is particularly the case for non-citizens who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention while their immigration status is being resolved.

   6.2  The best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

   (1)Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of any children under 18, who would be affected by the decision.

   a.in considering the best interests of the child, decision-makers should have regard to the fact that the cancellation of a Bridging E Visa under the prescribed grounds in regulation 2.43(1)(p) or (q) does not necessarily represent final resolution of a person's immigration status in Australia.

   7.  Secondary considerations

   (1)In deciding whether to cancel a non-citizen's Bridging E visa, the following secondary considerations must be taken into account:

   …

   c.the circumstances in which the ground for cancellation arose (such as whether there are mitigating factors that may be relevant, as well as the seriousness of the offence, the reason for the person being the subject of a notice (however described) issued by Interpol, or the reason for the person being under investigation by an agency responsible for the regulation of law enforcement);

   …

BACKGROUND FACTS

1. The chronology of events relevant to this matter is:

   a)the applicant arrived in Australia on a provisional partner visa on 31 October 2018;

   b)a protection order was made on 17 July 2019 under the Domestic and Family Violence Protection Act 2012 (Qld) ordering the applicant to “be of good behaviour towards [his sponsor] and to not commit domestic violence against the [sponsor]”;

   c)the applicant’s application for a Permanent Spouse (Subclass 100) visa was refused on 18 July 2019;

   d)on 19 September 2019 the applicant and the sponsor went to their home after the applicant had had a doctor’s appointment.  It was alleged that when at home the applicant lost control of his emotions and stabbed himself, leading to his involuntary admission to hospital;

   e)the applicant’s conduct on 19 September 2019 led to the issuing of a temporary protection order under the Domestic and Family Violence Protection Act 2012 (Qld) on 1 October 2019, which repeated the order of 17 July 2019 and also imposed additional conditions on the applicant;

   f)the applicant was transferred from hospital to immigration detention on 2 October 2019 because he was an unlawful non-citizen;

   g)the applicant applied for a protection visa and an associated bridging visa on 14 October 2019;  

   h)on 17 October 2019 the applicant was charged with breaching the original protection order; 

   i)being satisfied that a ground of cancellation existed under reg.2.43(1)(p)(ii) of the Regulations because the applicant had been charged with the offence “Contravention of Domestic Violence Order”, the delegate cancelled the applicant’s bridging visa under s.116(1)(g) of the Act on 17 October 2019.

2. The applicant’s representatives submitted to the Tribunal:

   Primary considerations

   25. Finally, the applicant suffers from severe mental health issues.  There are over a dozen statements from the applicant’s family in that regard and his family’s evidence is corroborated by independent authoritative sources confirming that he suffers from Post-Traumatic Stress Disorder.

   10.We submit on the applicant’s behalf that the single offence that he has been charged with does not involve a danger to the community or the alleged victim.  His offending is closely linked to his psychiatric condition …

   …

   Circumstances in which the ground for cancellation arose

   22.The applicant was charged some four weeks after he is alleged to have committed a single offence of breaching a contravention order.  He was going through some sort of a mental psychosis which resulted in him stabbing himself in the chest.

   …

   24.Given the fact that the applicant has never been convicted of any offences in the past, he has not had any charges or convictions prior to the current charge, his charge is linked to his psychiatric condition as confirmed by independent reports from authoritative sources and there are over a dozen statements confirming that he is a person that is “honest, caring, respectful, trustworthy, hardworking and helpful’ among other things.  The tribunal should exercise its discretion in his favour and should not affirm the applicant’s visa cancellation.

   …

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.  The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms:

   7.In considering whether the applicant’s bridging visa should be cancelled, the Tribunal observed that it was required to apply Direction No.63, Bridging E visas – Cancellation under section 116(1)(g) – regulation 2.43(1)(p) or (q).

   8.In relation to the primary considerations, the Tribunal:

   (a)Gave weight to the Government’s view that the prescribed grounds for cancellation should be applied vigorously in that every instance of non-compliance should be considered for cancellation.  The Tribunal observed that it had given careful consideration to the charges that had been brought, the matters alleged and the conditions that had been attached to bail.  The Tribunal gave “very significant weight” to the fact that the offence involved domestic violence.  The weight given to this consideration was, however, moderated by the fact that the charge had not been proven and the conditions attached to bail did not indicate a significant flight risk.

   (b)Gave some weight to evidence that the applicant’s nieces, nephews and cousins may suffer emotional consequences from being separated from the applicant.  However, the Tribunal observed that the applicant had only been in Australia for some 15 months.  None of the children were materially dependent upon him.  The psychological report submitted on the applicant’s behalf stated that there was insufficient information to indicate that his detention would result in permanent and significant psychological harm to the children.  In these circumstances, more weight was given to the prescribed grounds than to the effect of cancellation on the children.

   9.In relation to the secondary considerations, the Tribunal:

   (a)Considered the applicant’s contention that the subject matter of the criminal charges arose in the context of mental health problems that his wife and he suffered.  The Tribunal accepted that professional reports were submitted indicating that the applicant may suffer from an adjustment disorder and PTSD.  As no reports were submitted in relation to the wife, the Tribunal did not form a view of her in this regard.  The Tribunal considered that ultimately whether the applicant’s “health assessment mitigates or excuses his alleged conduct” was not a matter for it to determine.  However, to the extent the issue was relevant to the secondary considerations, the Tribunal observed that this would be dealt with in its reasons.

   (b)In this regard, the Tribunal at [25] considered the circumstances in which the ground for cancellation arose.  The Tribunal observed that the applicant claimed that (a) it arose from a psychotic episode; and (b) his wife was not harmed.  The first claim was not considered to be supported on the evidence.  The second was also not accepted, as it ignored the “graphic threats” alleged to have been made and the situation to which the wife was subjected.  The Tribunal was concerned that the applicant had shown “very little insight” at the hearing into the distress to which his wife was put.  It considered that his psychological report indicated that the applicant had no understanding of the impact of his actions upon his wife.  The Tribunal further rejected that the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

   (c)The Tribunal observed that although the applicant had travelled to Australia on a provisional partner visa, his permanent application was refused and he was applying for a protection visa.  The Tribunal gave some weight in his favour to the fact that this application was yet to be assessed.  No weight was given to the factor of visa compliance, in circumstances where the visa upon which the applicant entered Australia contained no conditions and the bridging visa cancellation did not arise in the context of compliance.

   (d)The Tribunal accepted that the applicant may face emotional hardship from the cancellation of his visa and placement in immigration detention.  It also accepted that the applicant suffered from PTSD, management of which in the community was considered preferable.  The Tribunal afforded this some weight in the applicant’s favour.

   (e)The Tribunal considered that it only had limited evidence regarding the hardship said to be suffered by the applicant’s wife.  Although her family had made assertions in this regard, she did not make such assertions in her own statutory declaration.  She was not called to give oral evidence in support of the applicant.  The Tribunal also observed that the supplementary declarations lodged by her brother and sisters indicated that the family was providing financial and emotional support.

   (f)Some weight was given to the applicant’s cooperation with the Department.  The Tribunal also had regard to the mandatory legal consequences which may follow from the cancellation, including liability to detention and an inability to apply for further visas.  The issue of non-refoulement was found not to apply as a consequence of the visa cancellation.

   (g)The Tribunal also gave some weight to the applicant’s claimed ties to the Australian community and to the written material submitted by his employer.  However, the Tribunal considered that these matters were tempered by the relatively short duration of the applicant’s residence in Australia.

   10.Considering the circumstances as a whole, the Tribunal concluded that the bridging visa should be cancelled.  Accordingly, it affirmed the Delegate’s decision.

   (References omitted)

2. I adopt that summary.

THE PROCEEDING IN THIS COURT

1. In the application commencing this proceeding the applicant alleged:

   1.The Tribunal failed to take into account a mandatory relevant consideration, being the applicant’s mental health issues and the mitigating effect those mental health issues had on his conduct on 19^th September 2019.

   Particulars

   1.1.The Tribunal was required to consider the applicant’s individual circumstances, including any mitigating factors as to the criminal conduct alleged against him.

   1.2.The applicant provided the Tribunal with a significant amount of material showing that he suffered from post-traumatic stress disorder prior to the incident on 19^th September 2019, and was affected by it in the months leading up to the incident. 

   1.3.The Tribunal only took into account the applicant’s post-traumatic stress disorder in the context of the hardship it would have on him if detained (at [23]) but expressly considered that whether the applicant’s “health assessment mitigates or excuses his alleged conduct is not for [the Tribunal] to determine” (at [20]).

   2.In the alternate the Tribunal failed to give proper, genuine and realistic consideration to a mandatory relevant consideration, being the applicant’s claims and evidence that his conduct on 19^th September 2019 was caused by reason of the applicant’s mental health issues, and thereby committed jurisdictional error.

   Particulars

   2.1.The Tribunal was required to consider the applicant’s individual circumstances, including any mitigating factors as to the criminal conduct alleged against him.

   2.2.The applicant raised claims and provided supporting evidence to show that the applicant was suffering a psychotic or potential psychotic episode on 19 September 2019 including inter alia an order committing the applicant for involuntary mental health treatment made on 20 September 2019.

   2.3.The Tribunal failed to consider this material.

CONSIDERATION

Applicant’s submissions

1. Both of the application’s grounds alleged that the Tribunal erroneously failed to consider whether the applicant’s state of mental health on 19 September 2019 mitigated the seriousness of his alleged conduct on that day.  The differences in expression employed by the two allegations add nothing to the substance of the applicant’s case and both grounds raise the same issue, namely whether the Tribunal had turned its mind to the applicant’s variously particularised claims as required by law.

2. The applicant cited a medical report which referred to him having suffered from post-traumatic stress disorder (“PTSD”) and a “Treatment Authority” dated 20 September 2019, expressed to be Queensland Government document made under the Mental Health Act 2016 (Q’ld) authorising involuntary treatment for mental illness, which referred to him having suffered “possible psychotic phenomena”.  He also referred to statutory declarations made by him and his sponsor’s parents concerning his mental state at the relevant time and to the fact that he had stabbed himself, not his sponsor. It was submitted that in the face of that material, “a conclusion that the applicant’s conduct in the self-harm incident was linked to his mental health was almost inescapable”. 

3. The applicant referred to Direction 63. He submitted that:

   The Direction expressly requires a decision maker to consider a person’s individual circumstances, including the seriousness of their actual or alleged behaviour, and any mitigating circumstances (see at [4.3 Principles] at (6)) and in particular the circumstances in which the ground for cancellation arose (such as whether there are mitigating factors that may be relevant) (at [7 – Secondary Considerations] at (1)(c)).

4. Noting that the Tribunal had accepted that he had suffered from PTSD, the applicant submitted that if his mental health had affected his conduct, that was a mitigating factor which Direction 63 required the Tribunal to take into account. He argued in that connection that his submission to the Tribunal that his offending had been closely linked to his psychiatric condition was a submission that the Tribunal should have regarded his mental health condition as a potentially mitigating factor for the purposes of Direction 63.However, he argued it had not taken his mental health into account in that way and that this was evidenced by the Tribunal’s statement at para.20 of its decision record:

   Whether [the applicant’s] health assessment mitigates or excuses his alleged conduct is not for me to determine.

5. The applicant also argued that the Tribunal’s failure to have proper regard to matters of mitigation was reflected in its summary of Direction 63, which did not mention mitigating circumstances. The Tribunal summarised the direction’s material provisions as follows:

   14.    The primary considerations are:

   •the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of noncompliance should be considered for cancellation; and

   •the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

   15.    The secondary considerations are:

   •the impact of a decision to cancel the visa on the family unit;

   •the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

   •the circumstances in which the ground for cancellation arose;

   •the possible consequences of cancellation; and

   •any other matter considered relevant.

6. In support of his argument that the Tribunal had not considered his mental health condition as a factor potentially mitigating the seriousness of his conduct on 19 September 2019, the applicant referred to what the Tribunal had said in para.25 of its reasons:

   I have considered the circumstances in which the ground for cancellation arose.  The submissions advanced on behalf of [the applicant] claim that (a) it arose from a psychotic episode; and (b) that [the sponsor] was not harmed.  The first claim is not supported by evidence.  I do not accept the second assertion, which ignores the graphic threats alleged to have been made and the situation to which she was subjected.  [The applicant] showed very little insight at the hearing as to the distress to which [the sponsor] was put.  His psychological report indicated that he has no understanding of the nature of the event on her.  In any event, it cannot be accepted that the circumstances in which the ground for cancellation arise were beyond his control.  In coming to that view, I distinguish the applicant’s ‘loss of control’ or lack of insight into his own actions, from the situation where the ground for cancellation arises from the actions, or change of immigration status, of others.

7. The applicant argued that in that paragraph the Tribunal was considering his culpability for his conduct, in the sense of the presence or absence of mens rea, rather than whether the particular circumstances giving rise to that conduct had been beyond his control and so mitigated the seriousness of his conduct on 19 September 2019.

Discussion

Application of the relevant test

1. I am not persuaded that the Tribunal’s summary of relevant parts of Direction 63 or the final sentences of para.20 of its reasons evidenced that it had not appreciated the need to have regard to possible mitigating circumstances when it came to exercising its discretion. The summary needs to be seen in the context of the Tribunal’s reasoning generally and the final sentences of para.20 need to be seen in their particular context. That paragraph said:

   [The applicant] provided written and oral evidence as to his personal circumstances.  In this, he was assisted by detailed submissions from his representative.  [The applicant] maintains that the subject matter of the criminal charges arose in the context of mental health problems suffered by both himself and his wife.  Professional reports were submitted indicating that he may suffer from an adjustment disorder and PTSD.  No medical reports in respect of the complainant were tendered and I form no view in respect of her.  Whether [the applicant’s] health assessment mitigates or excuses his alleged conduct is not for me to determine. To the extent this issue is relevant to other secondary considerations, it is addressed below.

2. Read in context, and particularly in light of the final sentence of that paragraph, I am satisfied that when the Tribunal said:

   Whether [the applicant’s] health assessment mitigates or excuses his alleged conduct is not for me to determine,

   it was referring to the criminal charge arising out of the events of 19 September 2019. 

3. The fact that para.25 commences with the words:

   I have considered the circumstances in which the ground for cancellation arose

   in circumstances where para.7(1)(c) of Direction 63 commences:

   the circumstances in which the ground for cancellation arose

   is a strong indication that it is para.25 of the Tribunal’s reasons that deals with the secondary considerations found in para.7(1)(c) of Direction 63, not para.20. That impression is strengthened by the Tribunal’s discussion in para.25 of circumstances being affected by things beyond an applicant’s control. That was a reference to matters that might be taken into account in mitigation of the seriousness of the circumstances enlivening the discretion to cancel a bridging visa. The fact that in that paragraph the Tribunal considered the applicant’s submission that he had suffered a psychotic episode on 19 September 2019, which appeared in his representatives’ written submissions under the heading “Circumstances in which the ground for cancellation arose” and so plainly related to questions of mitigation, emphasises that in that discussion the Tribunal was having regard to matters of mitigation.

4. I find that para.25 is directed to considerations of mitigation and that para.20 is consequently irrelevant to whether or not the Tribunal directed its mind to such things. Because the issue of mitigation was dealt with in para.25, it is also irrelevant to the present dispute that its summary of Direction 63 made no specific reference to it.

Error in consideration of the evidence on the applicant’s mental condition

1. The applicant’s argument about the inescapability of a conclusion that his conduct on 19 September 2019 was “linked to his mental health” was really a comment on the Tribunal’s fact-finding, rather than a challenge to the lawfulness of its findings. 

2. The relevant issues raised by the initiating application were not whether the Tribunal had reached a particular conclusion on mitigation but whether it had considered the applicant’s claims about matters he contended mitigated the seriousness of his alleged conduct on 19 September 2019 and, if it had, whether it had done so in a substantive and not tokenistic way.  The consideration of those issues necessarily involves reference to the Tribunal’s process of fact finding as well.

Psychotic episode

1. As already noted, the applicant specifically submitted to the Tribunal as a factor mitigating the seriousness of his alleged conduct that he had been “going through some sort of a mental psychosis” on 19 September 2019.  The Tribunal considered that allegation but did not accept it.  It was open to the Tribunal to make that finding because there was evidence before it that the applicant suffered from an adjustment disorder rather than psychosis. 

2. In that connection, the reference to “possible psychotic phenomena” in the Treatment Authority is best understood by having regard to its context, namely as an expression of the reason why the Treatment Authority was made:

The reasons you believe the person may have a mental illness, including diagnosis

Bizarre behaviour with self-harm with knife requiring sutures

- possible psychotic phenomena

1. Plainly, the statement in question was speculative although subsequent statements in that document indicate that the doctor certifying the applicant’s need for involuntary treatment was concerned that his conduct had been “psychotic in nature”.  Nevertheless, the only evidence to which the Court was taken of evidence before the Tribunal of an actual diagnosis of the applicant’s condition was in notes of medical consultations early in the applicant’s immigration detention.  Those notes, entitled “Clinical Handover Summary” and dated from 3 October 2019 to 25 October 2019, record that the applicant had “no psychotic symptoms” but suffered instead from an “Adjustment Disorder”.  That being so, it was open to the Tribunal to conclude that the evidence did not support a finding that the applicant’s behaviour on 19 September 2019 arose out of a psychotic episode. 

2. Although the Tribunal’s relevant reasons in para.25 were not lengthy, they demonstrate a recognition of and engagement with the applicant’s contention that the seriousness of his alleged conduct was mitigated by the circumstances which brought it about.  As the Tribunal said:

   … it cannot be accepted that the circumstances in which the ground for cancellation arise were beyond his control. …

PTSD and adjustment disorder

1. The applicant’s other submission, that the Tribunal should have had regard to his mental health condition generally when considering the potential existence of mitigating circumstances, overlooks the argument he made to the Tribunal.  He did submit to the Tribunal that his 19 September 2019 conduct was “linked to his psychiatric condition”, and the Tribunal did accept that he suffered from PTSD, but it was not that condition or his adjustment disorder which the applicant identified in his submissions to the Tribunal as the cause of his behaviour on 19 September 2019.  As noted already, he specifically submitted to the Tribunal that he had been “going through some sort of a mental psychosis” on 19 September 2019.  Moreover, he did not identify to the Tribunal what the particular link to his broader psychiatric issues, referred to in his submission to this Court, was or what it or those broader issues signified.

2. As the applicant did not argue to the Tribunal that it should have had regard to his mental health condition generally when considering the potential existence of mitigating circumstances, the fact that it did not consider that argument does not point to error on its part.

Consideration of mens rea rather than Direction 63 mitigation

1. Finally, I am not persuaded by the the applicant’s submission that the Tribunal’s rejection of his contention that the circumstances in which the ground for cancellation arose were beyond his control, reflected a consideration of potential criminal guilt.  The Tribunal noted the difference between circumstances that are outside a person’s control and circumstances where a person has lost self-control which, in light of its rejection of his claim to have suffered a psychotic episode, was the Tribunal’s implicit conclusion regarding the applicant.  That distinction was directly relevant to “the circumstances in which the ground for cancellation arose” and whether they contained “mitigating factors”.  I find it was to those issues that para.25 of the Tribunal’s reasons were relevantly directed.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:   23 April 2020