EUF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1800
•15 December 2020
FEDERAL COURT OF AUSTRALIA
EUF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1800
Appeal from: EUF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 912 File number: NSD 563 of 2020 Judgment of: THAWLEY J Date of judgment: 15 December 2020 Catchwords: MIGRATION – appeal from orders of Federal Circuit Court of Australia dismissing application for judicial review of Administrative Appeals Tribunal decision – whether Tribunal took into account mitigating factors put by the appellant as relevant as circumstances in which the ground for cancellation arose in accordance with Direction No 63 – held that Tribunal did not take the mitigating factors into account and that the Federal Circuit Court erred in failing so to conclude – appeal allowed Legislation: Migration Act 1958 (Cth) ss 116(1)(g), 499
Migration Regulations 1994 (Cth) reg 2.43(1)(p)
Mental Health Act 2016 (Qld)
Penalties and Sentences Act 1992 (Qld) s 12
Direction No 63 Bridging E visas, Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q)
Cases cited: EUF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 912
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 33 Date of hearing: 15 December 2020 Counsel for the Appellant: I Chatterjee Solicitor for the Appellant: Scott Calnan Lawyers Counsel for the Respondents: J Kay Hoyle Solicitor for the Respondents: Clayton Utz ORDERS
NSD 563 of 2020 BETWEEN: EUF19
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICUTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
THAWLEY J
DATE OF ORDER:
15 DECEMBER 2020
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Set aside the orders of the Federal Circuit Court of Australia and, in lieu thereof:
(a)there issue absolute in the first instance:
(i)a writ of certiorari directed to the second respondent to quash the decision of 29 October 2019;
(ii)a writ of mandamus directed to the second respondent to exercise its powers according to law.
(b)order the first respondent in the Federal Circuit Court of Australia to pay the applicant’s costs in that Court.
3.The first respondent pay the appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)
THAWLEY J:
This is an appeal from an order of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision (hereafter “T”) made on 29 October 2019 by the Administrative Appeals Tribunal. The Tribunal affirmed a decision of 17 October 2019 of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the appellant’s Subclass 050 (Bridging (General)) visa pursuant to s 116(1)(g) of the Migration Act 1958 (Cth) and Reg 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth).
BACKGROUND
The background facts are set out in the decision (hereafter “J”) of the primary judge: EUF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 912. The appellant is from Afghanistan, where his experiences led him to suffering from post-traumatic stress disorder (PTSD). He entered Australia on a provisional partner visa on 31 July 2018. A permanent partner visa was ultimately refused on 18 July 2019 but the appellant was unaware of the refusal at the time.
The appellant was charged on 17 October 2019 with a contravention of a domestic violence order (DVO) in relation to his wife. The charge arose in relation to an incident which occurred on 19 September 2020 during which the appellant stabbed himself with a knife. The appellant’s wife was not harmed. On 20 September 2019, the appellant was admitted to the Royal Brisbane and Women’s Hospital Authorised Mental Health Service pursuant to the Mental Health Act 2016 (Qld) which, amongst other things, provides for the treatment of “involuntary patients” with a “mental illness”.
The appellant was an involuntary patient until 2 October 2019 at which time he was transferred to immigration detention. At this point, he learned that his permanent partner visa application had been refused.
On 14 October 2019, the appellant applied for a protection visa including on the grounds of his membership of a particular social group due to his mental health issues and the harm that he would face as a result of his condition if returned to Afghanistan.
The appellant was interviewed for the issue of a bridging visa associated with his protection visa application on 17 October 2019 and issued with a bridging visa on that day. He was almost immediately taken into custody by Queensland Police and charges were laid against him later that day in relation to his contravention of the DVO, being an offence against a Queensland law.
The appellant’s bridging visa was then promptly cancelled and he was returned to immigration detention. The cancellation occurred under s 116(1)(g) of the Act by reason of Regulation 2.43(1)(p)(ii), which together furnish the Minister with a discretionary power to cancel a visa if the Minister is satisfied that the visa holder has been charged with an offence against a law of a State or of the Commonwealth. Section 116(1)(g) of the Act provides:
116 Power 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.
…
Regulation 2.43(1)(p)(ii) of the Regulations provides:
2.43 Grounds 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…
…
The appellant is presently awaiting determination of his protection visa application and will necessarily be detained through the entirety of that process. Although irrelevant to the issues to be determined on this appeal, I note that the charge against the appellant in relation to his contravention of the DVO has been disposed of without entry of a conviction pursuant to s 12 of the Penalties and Sentences Act 1992 (Qld).
DIRECTION 63
On 4 September 2014, the then Minister for Immigration and Border Protection gave a written direction pursuant to s 499(1) of the Act concerning the approach to be taken to the cancellation of bridging visas under s 116(1)(g) and Reg 2.43(1)(p). The direction is called Direction No 63 Bridging E visas, Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q).
By reason of s 499(2A) of the Act, in conducting its review of the delegate’s decision, the Tribunal “must comply” with Direction 63. A failure to comply with a direction made pursuant to s 499(1) would result in jurisdictional error, assuming the failure was shown to be relevantly material: Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [11], [19], [68]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[31]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45].
Direction 63 states that it comprises a “number of Parts”. The number is two. Part one contains the “objectives” of the 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 Reg 2.43(1)(p) or (q). Part one of Direction 63 includes:
4 Part one
4.1 Objectives
(1) The Object of the Migration Act 1958 (the Act) is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under section 116(1)(g) of the Act, a decision-maker may cancel a visa if they are satisfied that a prescribed ground for cancelling a visa applies to the visa holder. The prescribed grounds are set out in regulation 2.43 of the Migration Regulations 1994. For the purpose of this Direction, only regulations 2.43(1)(p) and (q) are relevant.
(3) The purpose of this Direction is to guide decision-makers who are delegated to perform functions or exercise powers under the Act to cancel the visa of a non-citizen under section 116(1)(g) and regulation 2.43(1)(p) or (q). Under section 499(2A) of the Act such decision-makers must comply with a Direction made under section 499. This Direction also applies to Tribunal members reviewing visa cancellation decisions made under section 116(1)(g) and regulation 2.43(1)(p) or (q).
4.2 General Guidance
…
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.
(4)In order to effectively protect the Australian community and to maintain integrity and public confidence in the migration system, the Government has introduced measures that support the education of Bridging E visa holders about community expectations and acceptable behaviour. These measures encourage compliance with reasonable standards of behaviour and support the taking of compliance action, including consideration of visa cancellation, where Bridging E Visa holders do not abide by the law.
(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 of Direction 63 “[i]dentifies considerations relevant to Bridging E visa holders in determining whether to exercise the discretion to cancel” the visa. It provides that a decision-maker, informed by the “Principles” in [4.3], “must take into account the primary and secondary considerations” set out in Part two: [5.1(1)]. Paragraph 5.1 provides:
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 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.
(5)In applying the considerations (both primary and secondary), information and evidence from independent and authoritative sources should be generally be given greater weight than information from other sources.
In addition to [4.3(6)] in Part 1, paragraph c of the secondary considerations in [7(1)] in Part 2 is of particular relevance to the appeal. It provides:
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:
a. …
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); …
THE APPELLANT’S CASE
The appellant submitted before the primary judge and by written submissions on appeal that the Tribunal failed to consider whether the mental health issues from which the appellant suffered at the time of the alleged offending were “mitigating factors that may be relevant” as part of the “circumstances in which the ground for cancellation arose” – see: paragraph c of [7(1)] of Direction 63. In particular, the appellant contended that the Tribunal, although it accepted that the appellant suffered PTSD, did not take into account, properly or at all, the mitigating effect of his mental health issues in relation to his conduct on 19 September 2019 which had led to a charge that he had contravened the DVO and, in turn, the cancellation of his visa. These contentions were not accepted by the primary judge.
The appellant relies on two grounds of appeal, namely that the Federal Circuit Court erred in failing to find that the Tribunal failed:
(1)to take into account a mandatory relevant consideration; or
(2)alternatively, to give proper, genuine and realistic consideration to a mandatory relevant consideration.
THE APPEAL
Ultimately, the resolution of the appeal turns on an assessment of what the Tribunal did as revealed by its reasons for decision. The primary judge concluded that the Tribunal took into account the appellant’s mental health issues and did so in a way which was not affected by jurisdictional error. At J[19] and [20], the primary judge stated:
[19]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.
[20]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.
Paragraph [20] of the Tribunal’s reasons, extracted at J[19] in the passage set out above, could be understood in at least two ways. First, it might have been intended to convey simply that the following questions were matters for the relevant Queensland court and not the Tribunal: (a) whether the charge was proved; and (b) if so, what the consequences were. Secondly, it may have been intended to convey that the Tribunal did not consider that the role the appellant’s health issues played in the events leading to the charge was of any relevance to the Tribunal’s task. I understand the primary judge to have concluded at J[20] that the Tribunal at T[20] probably intended the comment in the first way just identified, rather than the second. The primary judge’s conclusion in this respect has not been shown to be wrong.
At J[21] and [22], the primary judge stated:
[21]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.
[22]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.
At J[25] to [30], the primary judge stated:
Psychotic episode
[25]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.
[26]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[27]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.
[28]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
[29]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.
[30]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.
At J[29], the primary judge correctly observed that the appellant had submitted that his 19 September 2019 conduct was “linked to his psychiatric condition” and that the Tribunal accepted that he suffered from PTSD. However, the primary judge’s conclusion that “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” is not correct. The appellant’s case was not confined to a case that the events of 19 September 2019 were caused by a psychotic episode. The appellant had put to the Tribunal, and it was in any event plain on the material before the Tribunal, that his offending was linked to his psychiatric condition generally, whether or not he in fact suffered a psychotic episode which could be regarded as the immediate cause of the events on 19 September 2019.
The appellant had put to the Tribunal in written submissions (footnotes omitted):
Primary Considerations
...
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.
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 and it’s also one of the objectives of the Mental Health Act under section 3(1) to enable people that suffer from mental health issues to be diverted from criminal justice system. The applicants [sic] charges may well end up being either dropped or dismissed by the court on this basis, but if the applicant’s visa is cancelled, irreversible damage would already have been done to the applicant.
…
Secondary Considerations
…
Circumstances in which the ground for cancellation arose
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. There is evidence from the alleged victim that she was neither harmed nor hurt and the single charge that he has been charged with is technical at best given the fact it was only brought by the police within minutes of his Bridging Visa grant.
The applicant’s offence is not complicated and did not need weeks of investigation or forensic reports and neither did the police perceive the applicant to pose unacceptable risk to the community or the victim because he was granted bail with the only condition to surrender himself to the Magistrate’s court on 18th of November 2019. In terms of the charge, the police rely on the alleged victim’s statement that was given the night of the incident and since then the Tribunal has before it fresh evidence from the victim confirming under the oath that she was neither harmed or assaulted that particular night.
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 Minister submitted on appeal, as he had before the primary judge, that the appellant’s claim was that the incident occurred as a result of a psychotic episode. In my view, that was just one aspect of the appellant’s claim as expressed in written submissions. The appellant’s claim was broader. The appellant’s claim was that the incident which led to the charge was linked to his mental health issues. The point the appellant was making was clear. He was asking the Tribunal to take into account, as a relevant mitigating circumstance, the fact that his mental health issues played a role in the events which led to the charge.
The primary judge concluded at J[21] and [22] that T[25] was directed to the secondary considerations found in paragraph c of [7(1)] of Direction 63, namely “considerations of mitigation”. That conclusion has not been shown to be wrong. However, the fact that the Tribunal turned its mind to paragraph c of [7(1)] does not necessarily mean that it complied with the paragraph or that it dealt with the case which the appellant had put. The difficulty with the Tribunal’s reasons is that, in applying paragraph (c) of [7(1)], it confined itself to considering: (a) whether the events of 19 September 2019 were precipitated by a psychotic episode such that the events could be seen as ones beyond the appellant’s control; and (b) the fact that the appellant’s wife was not harmed. The Tribunal rejected that the events were caused by a psychotic episode in one sentence, stating that it was “not supported by evidence”. The Tribunal did not turn its mind to the broader case which the appellant had put, namely that the events were linked to his mental health issues. It would have been open to the Tribunal to conclude on the basis of the evidence that, whilst not satisfied that the events were beyond the appellant’s control in the sense that they were caused by a psychotic episode, nevertheless the events were precipitated by serious mental health issues which operated as mitigating circumstances. The appellant had relied upon a report of a clinical psychologist dated 26 October 2019. The clinical psychologist concluded that the appellant’s symptoms met the criteria for PTSD, as defined by the Diagnostic and Statistical Manual of Mental Disorders. The clinical psychologist said:
The traumatic event for [the appellant] is the bus explosion which he experienced in Afghanistan. His symptoms include recurrent intrusive and distressing memories of the traumatic event, dissociative reactions (e.g. flashbacks) in which he feels and acts as if the traumatic event was recurring, and intense psychological distress at exposure to external cues that remind him of the traumatic event. [The appellant] has also experienced negative alterations in his mood and cognitions (e.g. “I am unsafe”, “The explosion is happening again”) that are associated with the traumatic event. Additionally, there are marked alterations in his arousal and reactivity, often expressed by him as anger, sleep disturbance and exaggerated startle responses. These symptoms were further exacerbated by the incidences of his home being broken into, or attempted to be broken into.
The clinical psychologist was asked whether the appellant’s condition was “likely to have affected his behaviour over the last few months and specifically for the self-harm incident on the 19th of September 2019”. The clinical psychologist concluded:
[The appellant’s] description of his behaviours over the last few months, including behaviours that were described by his relatives in the multiple statutory declarations and letters with which I have been provided, are consistent with Posttraumatic Stress Disorder. On the 19th of September 2019, [the appellant] appeared to have experienced intense irritability, negative emotional state (e.g. anger outbursts) and self-destructive behaviour.
I would also observe that the Tribunal’s statement at T[25] that the claim that the events arose from a psychotic episode was “not supported by evidence” is not accurate if, by that statement (which seems highly likely), the Tribunal intended to convey that there was no evidence that the events were caused by a psychotic episode. The appellant did not raise this as a ground of judicial review before the primary judge or seek to raise the matter on appeal. Notwithstanding, it is relevant to make some observations about it.
As mentioned, the appellant was involuntarily admitted to hospital pursuant to the Mental Health Act 2016 (Qld) on 20 September 2019 until 2 October 2019. The reasons given by the relevant medical practitioner for making the relevant treatment authority which led to the appellant becoming an involuntary patient included (emphases added):
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
The reasons you believe the person does not have capacity to consent to be treated for the illness
Has not proven to show stability in capacity of decisions
The reasons you believe that not providing involuntary treatment for the illness may result in:
i. imminent serious harm to the person or others; or
ii. the person suffering serious mental or physical deterioration
Recent self-harm attempt
Deterioration in context of psychotic phenomena
The reason you believe that there is no less restrictive way for the person to receive treatment and care for the person's mental illness
Erratic behaviour can be unpredictable and psychotic in nature with poor stability of decision making
This was contemporaneous medical evidence, produced by an independent medical practitioner making a decision to admit the appellant to hospital as an involuntary patient, supporting a conclusion that the appellant was experiencing (or had experienced) a psychotic episode.
The primary judge concluded at J[28] that the Tribunal engaged with the case put that the circumstances in which the ground for cancellation arose were beyond the appellant’s control because they were caused by a psychotic episode. The Tribunal only engaged with the appellant’s case by rejecting it in one sentence, stating that it was “not supported by evidence”, without referring to the independent contemporaneous medical evidence which did support the appellant’s case. Asked the reason why there was “no less restrictive way for the person to receive treatment and care for the person’s mental illness”, the medical practitioner responsible for making the appellant an involuntary patient, answered that the appellant’s behaviour was “unpredictable and psychotic in nature”. It is open to question whether the Tribunal conducted, in this respect, the kind of “review” which it was the Tribunal’s jurisdiction to conduct.
As to the “Clinical Handover Summary” referred to by the primary judge at J[27], these were prepared after the appellant had been released from hospital. The references to “no psychotic symptoms” or “no evidence of psychosis today” are not readily understood as a diagnosis of the appellant’s state when he became an “involuntary patient”. Indeed, it would be open to interpret such observations as indicating that there had been a psychotic episode in the past.
In any event, neither the words of the Tribunal referred to by the primary judge at J[28], nor T[25] as a whole, indicate that the Tribunal considered the broader case which the appellant had put. The preferable understanding of the Tribunal’s reasons is that it only considered whether the appellant’s conduct leading to the charge resulted from a psychotic episode such that the relevant events could be seen as beyond the appellant’s control, but otherwise considered it was not relevant for it to consider whether the appellant’s mental health issues otherwise constituted a “mitigating factor” as a part of “the circumstances in which the ground for cancellation arose”.
The Tribunal was bound by reason of Direction 63 to take into account the circumstances in which the ground for cancellation arose and, in this case, that included whether there were “mitigating factors that may be relevant”. The appellant put that a mitigating factor was his mental health issues and the appellant adduced a significant body of evidence addressing the issue. His case was not confined to a case that the event on 19 September 2019 arose from a psychotic episode with the consequence that he could not be regarded as having been in control. The Tribunal failed properly to take into account the circumstances in which the ground for cancellation arose by failing properly to consider whether the appellant’s mental health issues operated as a mitigating factor by reason of the role those mental health issues played in the circumstances leading to the charge. If it had taken the material into account, it may have reached a different conclusion. The failure to comply with Direction 63 was, accordingly, material such that the failure to comply constitutes jurisdictional error.
CONCLUSION
The appeal must be allowed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley. Associate:
Dated: 16 December 2020
0
4
5