Fasi and Minister for Home Affairs (Migration)
[2018] AATA 4049
•29 October 2018
Fasi and Minister for Home Affairs (Migration) [2018] AATA 4049 (29 October 2018)
Division:General Division
File Number(s):2018/4382
Re:Saimone TUINUKUAFE FASI
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Mr P W Taylor SC, Senior Member
Date:29 October 2018
Place:Sydney
The delegate’s reviewable decision of 6 August 2018 is set aside.
In substitution for the 6 August 2018 decision, the 13 October 2017 decision to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return visa is revoked.
.......................[sgd].............................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – mandatory visa cancellation – resident return visa – failure to pass character test – substantial criminal record – Ministerial Direction no. 65 applied – whether another reason why cancellation decision should be revoked – protection of the Australian community – bipolar affective disorder – mental health legislation – limited harm associated with offending – expectations of Australian community – best interests of minor children – strength, nature and duration of ties to Australia – impact on victims – extent of impediments if removed – removal likely to involve destitution and untreated mental illness – decision set aside and substituted
LEGISLATION
Mental Health Act 2007 (NSW) ss 14, 15, 18, 22, 26, 27, 35, 37, 51, 53, 58, 68
Mental Health Regulation 2013 (NSW) reg 8
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Act 1958 (Cth) ss 5, 189, 195A, 196, 198, 499, 501, 501CA, 501E, 501FMigration Regulations 1994 (Cth) reg 2.12AA, Sch 4 and Sch 5
CASES
Ali and Minister for Home Affairs (Migration) [2018] AATA 2512
Bahrami and Minister for Home Affairs (Migration) [2018] AATA 1332
Boulton v The Queen [2014] VSCA 342
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Jagroop v Minister for Immigration & Border Protection [2016] FCAFC 48; (2016) 241 FCR 461
Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Maioha v Minister for Immigration and Border Protection [2018] FCA 1016
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562
Minister for Immigration and Citizenship v Makasa [2012] FCAFC 166
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
R v Way [2004] NSWCCA 131
Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965
Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
World Health Organisation, The ICD-10 Classification of Mental and Behavioural Disorders
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
29 October 2018
Mr Fasi, a 48 year old Tongan national, has lived in Australia since he was eight years old. In 1987, when he was just 17 years of age, he was formally diagnosed with a Bipolar Affective Disorder, a significant psychiatric illness.[1] Its management has required a continuous medication regime. Except for a substantial period between about 2005 and 2010, it is a regime with which Mr Fasi unsuccessfully struggled to comply. His compliance failures and substance abuse, have contributed to his life being punctuated by numerous periods of hospitalisation in mental health facilities. They also appear to have contributed to the commission of a range of offences, and many convictions.
[1] In various places Mr Fasi’s illness has been described as (a) “schizoaffective disorder”. Later in these reasons I refer to the formal diagnoses recorded in 2017 by Mr Fasi’s treating psychiatrist, and the disorder description to which the diagnosis relates:- see paragraphs 51 & 67 below. I have proceeded on the basis of the accuracy of those diagnoses.
By August 2013 five of Mr Fasi’s convictions had resulted in sentences of imprisonment totalling more than 12 months. As a result of those sentences Mr Fasi had a “substantial criminal record”, and consequently failed the “character test” in s 501(6) & (7) of the Migration Act 1958 (Cth) (“MigAct_58”). That failure rendered him liable to visa cancellation in the exercise of the discretion conferred by MigAct_58 s 501(2). Following the December 2014 amendments to MigAct_58, Mr Fasi was exposed to the risk of mandatory visa cancellation during any period of incarceration if he had been subject to any sentence of 12 months or more:- see the Migration Amendment (Character and General Visa Cancellation) Act 2014 and MigAct_58 s 501(3A).
In 2015 and 2016 Mr Fasi incurred convictions for further offences, received additional sentences that included two 12 month sentences, and served two periods of imprisonment – from January to May 2016, and October 2016 to March 2017. Notwithstanding those convictions and sentences the Minister did not cancel Mr Fasi’s visa.
In early October 2017 Mr Fasi’s conviction for a further offence resulted in a one month custodial sentence. Eight days later, on 13 October 2017, and in accordance with the mandatory obligation imposed by MigAct_58 s 501(3A), a Ministerial delegate did cancel Mr Fasi’s permanent visa (a class BB subclass 155 Five Year Resident Return Visa) that he had held since May 2005.
Following that decision, and as MigAct_58 s 501CA(2)&(3) required, Mr Fasi was notified of his visa cancellation, and invited to make representations about its revocation. Despite the representations Mr Fasi made in response to that invitation, a Ministerial delegate decided not to revoke the cancellation decision. That 6 August 2018 decision is the subject of Mr Fasi’s review application in the present proceedings.
THE EFFECT OF VISA CANCELLATION
Where a visa has been cancelled, its former holder becomes an “unlawful non-citizen”. As such they are liable to be held in immigration detention cancellation – until (amongst other things) their visa is restored, they obtain another visa or they are removed from Australia:- see MigAct_58 ss 189, 196. If the non-citizen has no undetermined applications (for revocation of their visa cancellation, or for a protection visa) they are required to be removed from Australia “as soon as practicable” –:- see MigAct_58 s 198(2B)&(5A). The practicability limitation implicitly permits continued detention for the purpose of considering exercise of the Minister’s public interest discretion in MigAct_58 s 195A:- Plaintiff M61/2010E v Commonwealthof Australia; Plaintiff M69/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [27]&[35].
A non-citizen whose visa has been cancelled has limited prospects of obtaining another visa. Whilst they remain in “the migration zone” (ie., for most practical purposes, within Australia or its territorial waters) there is a statutory preclusion against them applying for, or obtaining, most other classes of visa:- MigAct_58 s 501E(1). That preclusion does not apply to applications for a protection visa, for a bridging visa pending the person’s removal, or to a discretionary Ministerial visa grant:- MigAct_58 s 501F(3); Migration Regulations 1994 (Cth) 2.12AA (“MigReg_94”) & MigAct_58 s 195A.
After a non-citizen has left “the migration zone” there is no express prohibition against them making a visa application. But there are forlorn prospects of any such application being successful, and an unrevoked visa cancellation decision has the probable practical effect of permanent exclusion from Australia. This is because such a “ non-citizen”:
(a)would be unlikely to satisfy the public interest criterion 4001 that is a common “primary” and “secondary” criterion for many visa subclasses:- see MigReg_94 Schedule 4
(b)would be unlikely to satisfy the “special return” criterion 5001 that is also a common additional “primary” and “secondary” criterion for many potentially relevant visa subclasses (including tourist [676], holiday [462], parent [103], remaining relative [115] and partner [103] subclasses). (The broad general effect of criterion 5001 is that it excludes a person whose visa has been effectively and finally cancelled under MigAct_58 s 501:- see MigReg_94 Schedule 5).
On the other hand, a non-citizen’s visa status, even after a revocation decision, confers no permanent right to Australian presence. Every visa holder who has a “substantial criminal record” is subject to the risks of (i) mandatory visa cancellation (in the event of any subsequent period of incarceration) and (ii) discretionary visa cancellation, at least in the event of further offending, or a material adverse change in the non-citizen’s personal circumstances:- see MigAct_58 s 501(2)&(3B) & Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 at 511; [2016] FCAFC 185 at [36]-[38].
THE REVOCATION DISCRETION
Where a non-citizen undoubtedly has a “substantial criminal record”, exercise of the revocation discretion depends on satisfaction there is “another reason why” the cancellation decision should be revoked:- MigAct_58 s 501CA(4)(b)(ii). That “another reason” criterion requires consideration of all circumstances relevant to the particular non-citizen whose status is in contention. The purpose of that consideration is to achieve a result that is “fair and rational in all of the circumstances”:- Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]-[83]; (2014) 227 FCR 562.
The required consideration must have regard to all relevant matters, and must consider the extent to which they tend to favour maintaining or revoking the mandated visa cancellation decision:- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]&[39]. In this respect the scope of the revocation discretion is consistent with the visa cancellation discretion conferred by MigAct_58 s 501(2). A non-citizen’s inability to satisfy the character test (because of their statutorily defined “substantial criminal record”) enlivens the visa cancellation discretion, but does not itself require its exercise. Neither does that inability dictate the outcome of the revocation discretion. Mr Fasi’s actual visa history demonstrates that MigAct_58 s 501(3A) can both fail to be applied during significant periods of a non-citizen’s imprisonment and yet result in visa cancellation during a comparatively minor period of incarceration. This foreseeably inconsistent application of the mandatory visa cancellation provision suggests that the revocation discretion was not intended to be restricted by the cancellation obligation, and in fact requires essentially the same consideration, of all relevant circumstances, as the general visa cancellation discretion in MigAct_58 s 501(2).
The process of considering relevant matters must involve “an active intellectual engagement” with the available information concerning the particular non-citizen and the principles that govern the exercise of the statutory discretion:- Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]-[49]; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [26]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [32]-[46], esp at [39] & [44] per Griffiths, White and Bromwich JJ; Maioha v Minister for Immigration and Border Protection [2018] FCA 1016 at [24]-[26]; Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965.
Any decision made in the exercise of the revocation cancellation discretion must be legally “reasonable” – in the sense that it has a rational foundation and involves a result that is not plainly unjust:- Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [13]-[20]. Where the discretion falls to be exercised in the Tribunal’s review jurisdiction, that jurisdiction is to be exercised for the purpose of achieving the “correct or preferable” result, having regard to the terms and purpose of the relevant statutory provisions, and the available relevant information:- Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.
MINISTERIAL DIRECTION NO. 65
Exercise of the statutory “another reason” revocation discretion, by either a Ministerial delegate or this Tribunal, is subject to compliance with the relevant Ministerial direction:- “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction no. 65”):- see MigAct_58 s 499(1) & (2A).
The contents of Direction no. 65 do not restrict the duty of any decision maker to reach the preferable decision in the light of the circumstances relevant to the particular non-citizen:- Jagroop v Minister for Immigration & Border Protection [2016] FCAFC 48; (2016) 241 FCR 461 at [57] & [78]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. The Direction provides guidance that is intended to assist in the appropriate exercise of the relevant discretion. As the Minister submitted in the latter case:
[35]… the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
Direction no. 65 is a publicly available document, but it is prudent to outline its material content. The Direction Preamble details the principal objective of MigAct_58 (ie., the national interest regulation of non-citizen presence in Australia) and the objectives of the relevant statutory visa cancellation provisions. In relation to the latter, the stated objectives include the requirement that the statutory discretion (whether it relates to visa grant, cancellation or cancellation revocation) be exercised after consideration of “the specific circumstances of the case”:- cl 6.1(2)&(3). (In this respect Direction no. 65 necessarily embraces the propositions set out in paragraph 11 above.)
The immediately following part of the Preamble to Direction no. 65 provides a statement of “general guidance” for decision-makers. The statement commences with a declaration of government commitment to “protecting the Australian community from harm as a result of criminal activity”, and from what is referred to as “other serious conduct”. That expression is defined in the interpretation Annexure as including behaviour that (i) did not result in formal conviction, (ii) did not “strictly speaking” involve a criminal offence, (iii) was probative of a lack of good character, or (iv) indicated a risk of future criminality, intimidation, danger, or community discord. It may also be taken to include situations where a person’s mental incapacity precluded formal conviction, but their conduct would otherwise have been characterised as criminal:- see MigAct_58 s 501(7)(e)&(f).
The guidance statement continues with a reference to “principles” that are said to provide “a framework” for decision-making in individual matters, and to “reflect community values and standards” relevant in assessing whether “the risk of future harm from a non-citizen is unacceptable”. They are said to be of “critical importance” in furthering the objective of the Government’s protective commitment:- cl 6.2(1)&(3). Those “principles” can be understood as involving the following propositions:-
(a) the character of a non-citizen’s lawful presence in Australia is a conditionally available statutory right (described as a “privilege”) conferred on the basis of expectations the visa holder will (i) comply with Australian law, (ii) respect Australia’s government institutions and, (iii) not cause any harm to either individuals or to the Australian community:- cl 6.3(1)
(b) where a non-citizen has committed “serious crimes” (non-exhaustively exemplified as those involving violence, sexual violation and offences whose victims were officials, disabled, elderly or children) there is general community expectation of visa refusal or cancellation:- cl 6.3(2)&(3)
(c) in “some circumstances” the nature of a non-citizen’s past offending conduct, and its associated harm, may be so serious that “any risk” of future repetition is unacceptable, despite “strong countervailing considerations” favouring the person’s continued Australian presence:- cl 6.3(4)
(d) in other circumstances it may be appropriate to afford a degree of tolerance in relation to a non-citizen’s “criminal or other serious conduct”.- cl 6.3(5)
(e) the appropriate degree of tolerance is low where the non-citizen is either a visa applicant or the holder of a limited stay visa – because they cannot have any justifiable expectation of continued Australian presence:- cl 6.3(6)
(f) the appropriate degree of tolerance is also stated to be low in relation to the criminal conduct of a non-citizen visa holder whose Australian community presence and contribution has been “only for a short period of time”:- cl 6.3(5)
(g) where a non-citizen visa holder has lived in Australia either “for most of their life”, or from an early age, a higher level of tolerance “may” be appropriate in relation to the risk of their future offending:- cl 6.3(5)
(h) any adverse impact of visa cancellation on Australian resident family members and minor children, is a relevant consideration to which regard should be had:- cl 6.3(7)
(i) the extent and nature of a non-citizen’s positive contribution to the Australian community are relevant considerations in the exercise of the statutory discretion:- cl 6.3(5)&(7).
The principles recognise a “higher level of tolerance” as a permissible possibility. They do so without articulating the reasons why, the circumstances when, or the extent to which, either long time, or tender age commencement of, Australian residence, are thought to be influential. Nevertheless, and despite the diffidence inherent in the permissive expression “may”, the overall context, and the requirement to pay genuine regard to the identified relevance of those matters, suggests they should be regarded as influential considerations. Since the fact of a non-citizen’s developmental upbringing in Australia is expressly identified as a relevant consideration, it is difficult to escape the conclusion that a person’s Australian residence from a young age may significantly contribute to a conclusion that it is appropriate to continue to tolerate their presence in, rather than to exclude them permanently from the Australian community in which they have been raised:- see paragraph 8 above. Consequently, considerations of that kind inherently tend to favour retention of visa status, notwithstanding the existence of a real risk of future offending and related harm. But in any particular case the appropriate degree of influence to be accorded to long time Australian residence will be informed by the apparent extent and significance of those risks, and by the apparent significance of other relevant considerations, including the impact of visa cancellation on Australian resident family members (and on the non-citizen).
Section 2 of Direction no. 65 deals specifically with the exercise of the various visa related statutory discretions. It begins with a general requirement that decision-makers (i) exercise the discretion “informed by the principles”, (ii) take into account “the primary and other considerations relevant to the individual case” and, (iii) recognise that primary considerations “should generally” be given greater weight: - cl 7&8. It then differentiates between grant, cancellation, and revocation decisions. (In relation to that differentiation, Direction no. 65 explains that, unlike visa applicants, non-citizens who hold a substantive visa will generally have an expectation of being “permitted to remain for the duration of their visa”:- cl 8(1). That explanation complements the substantive distinction drawn in cl 6.3(5)&(6) between non-citizens who hold unlimited stay visas, and those who do not.)
The general guidance that “primary” considerations are to be given more weight than other considerations does not dictate “primary” considerations being accorded necessarily determinative weight:- Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28], [44]; HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 at [34]-[41]. In the circumstance of any particular case, any of the permissibly relevant considerations may be the ultimately determinative influences in the exercise of the relevant discretion: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [59].
Part C of Section 2 articulates the “primary” considerations (which are in fact common to all the discretions), and some of the “other” considerations, to which regard must be had in the exercise of the revocation discretion. The “primary” considerations are:-
(a) the protection of the Australian community – ie., the governmental commitment declared in the Preamble to Direction no. 65;
(b) the expectations of the Australian community; and
(c) the best interests of Australian resident minor children.
The “other” considerations specifically discussed in Section 2 Part C, and potentially material to Mr Fasi’s particular circumstances, are:
(a) the strength, nature and duration of his Australian ties;
(b) the nature and extent of the difficulties he is likely to encounter in establishing himself in Tonga; and
(c) the impact of any revocation decision on victims of his conduct.
MR FASI’S ADULT OFFENCE HISTORY
The available records of Mr Fasi’s offence history include a National Police Certificate, custody records of the NSW Department of Corrective Services and incident reports produced by the NSW Police force for the period from January 2012 to October 2017. Some aspects of this information (having regard to disparities between reported sentences and actual custody periods) are apparently anomalous or incomplete. I have proceeded on the basis that the actual timing, number and type of Mr Fasi’s adult offences and convictions[2] are primarily derived from the National Police Certificate, and that the sanctions they attracted, are together accurately and sufficiently summarised in the Schedule to these Reasons. I have also included in the Schedule abbreviated information about the various apprehended violence orders (“AVO”) to which Mr Fasi has been subject for most of the period since July 2010.
[2]Mr Fasi’s earlier offence history involves matters that preceded his 1987 diagnosis and about which no information is available. In the light of the bond sanctions for those offences, his apparent compliance with the bond conditions and the significant available information about Mr Fasi’s subsequent adult offence history, I have regarded the earlier matters as immaterial to any informed contemporary exercise of the visa cancellation revocation decision.
The information summarised in the Schedule supports the following propositions: -
(a)Mr Fasi has convictions for about 55 offences, and has been responsible for about 13 other offences, for which no conviction was recorded.
(b)Approximately 35 of Mr Fasi’s convictions (and two of his “no conviction” offences) relate to conduct between October 1991 and July 1998. (That is to say they occurred more than 20 years ago.)
(c)Between July 1998 and September 2004 Mr Fasi committed only four offences. Three of those offences did not result in convictions. His September 2004 assault conviction (the circumstances of which were again not the subject of any evidence) was dealt with by way of a good behaviour bond and did not result in any sentence.
(d)In the 12 year offence period between October 1991 and September 2004, Mr Fasi served sentences of imprisonment only once (in September 1994) in relation to two assault convictions. (The circumstances of Mr Fasi’s September 1994 assault convictions were not the subject of any evidence. Each resulted in a four month sentence, fixed to commence on 2 September 1994. Nevertheless, and for reasons that were not apparent, he is recorded as having spent 6 months in custody.)
(e)Between August 2013 and October 2017 Mr Fasi incurred 19 further convictions, and accumulated sentences totalling 89 months, for offences including:
(i) Driving related matters:- 5 convictions
(ii) Larceny / shoplifting / demanding property:- 3 convictions
(iii) Stalking / intimidation:- 3 convictions
(iv) Property damage:- 3 convictions
(v) Assault:- 3 convictions
(vi) AVO breaches:- 2 convictions.
(f)Mr Fasi’s convictions after August 2013 resulted in his actual imprisonment for a total of 14 months’ imprisonment, during the following periods:
(i) July to November 2013 (principally for AVO breach and assault offences)
(ii) January to May 2016 (principally for breaching a bond imposed for driving whilst disqualified)
(iii) October 2016 to March 2017 (principally for AVO breach and property demand offences)
(iv) September to October 2017 (for an AVO breach offence).
PROTECTIVE CONSIDERATIONS
The general guidance in cl 6.2(1) of Direction no. 65, and in the corresponding mandatory consideration in cl 13.1(1), emphasises the governmental commitment to protection from harm arising from the criminal activity of non-citizens. That commitment implies limited and, as the principles convey, generally low tolerance – especially in relation to “serious” offences.
There is a sense in which all offences can be regarded as “serious” and, having regard to established sentencing principles[3], especially where they result in a custodial sentence:- see eg., cl 6.2(1), 6.3(5), 6.3(6), 9.1(1), 9.1.2(2), 13.1(1), 13.1.2(2). But parts of Direction no. 65, at least implicitly disavow the inevitability of such a classification. Clause 13.1.1(1)(a), for example, contemplates that a wide range of offences “may” be considered serious. This permission implies a corresponding recognition that such a characterisation is neither mandatory, nor even appropriate, for some offences. Similarly, cl 13.1.1(c) to (e) require regard to the frequency and number of offences, as well as to the actual sentence imposed. Those obligations provide further context to the permission, and also tend against the conclusion that individual sentences, even of 12 month’s imprisonment, must necessarily be regarded as determinatively serious. Elsewhere the statement of principles in Direction no. 65 cl 6.3(2)&(3) use, but do not define, the expression “serious crime”. Similar expressions (“serious” Australian and foreign offences) are defined in MigAct_58 s 5. The general thrust of those definitions is that they mean offences that (i) involve violence, serious property damage or serious drug offences and, (ii) are punishable by imprisonment for three years or more. The exegesis in cl 13.1.1(1)(a)&(b) of Direction no. 65 provides an analogous categorisation. It points to the likelihood that “serious crime” includes violent and sexual crimes, as well as crimes against officials and vulnerable victims. All of those matters provide insight into the exercise involved in determining whether one or more of the offences of which a particular individual has been convicted merit characterisation, for the purposes of the revocation discretion, as “serious”. But they ought not be regarded as the sole, or even the necessarily determinative, source of information relevant to the characterisation. As North J pointed out in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [91], it is not possible to reach a legally reasonable conclusion about the seriousness of an offence without informative details of the actual circumstances involved. And in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (at [202] & [207]) Buchanan J emphasised a visa applicant / former visa holder is entitled to have their application assessed with proper regard to the merits of their particular circumstances. The best guide to the objective seriousness of a particular person’s offences comes from an understanding of the actual circumstances involved in the various offences and their sentences.
[3] See R v Way [2004] NSWCCA 131 at [115]; Boulton v The Queen [2014] VSCA 342 at [112].
In the immediately following paragraphs I address Mr Fasi’s various convictions from August 2013 onwards, where there is any meaningful information about the circumstances they involved. (Having regard to both the dates of, the nature of the sanctions relating to, and the absence of any significant information about, Mr Fasi’s pre-2013 offences I do not regard them as material to the contemporary exercise of the revocation discretion.)
The August 2013 offences
The general nature of these three convictions is apparent from the Schedule, but there was no other evidence to elucidate the actual circumstances. In particular there is no basis for determining when the offences occurred, who was the victim of the assault conviction, nor the degree of harm involved, nor even the nature of the AVO order or the circumstances of its breach. That absence of information of these kinds is a potentially significant limitation on the informed assessment of the seriousness and significance of these offences, essentially because of other evidence that tends to evidence the florid state of Mr Fasi’s illness in late December 2012 and during a substantial part of 2013:- see paragraph 64 below.
The May and September 2015 driving offences
Mr Fasi’s driving offence convictions in May 2015 are the first matters for which any kind of sentencing remarks are available. They involved three offences that occurred between 4 April and 4 May 2015. The first was an occasion on which Mr Fasi allowed a disqualified person to drive his car, despite having received a police warning about a week earlier. The second and third offences involved occasions when Mr Fasi drove his car, despite being aware that his licence had been suspended. When he was apprehended on both of these occasions (on 15 April and 5 May 2015) he explained (and according to the details in the available police incident reports, apparently accurately) that he had simply been moving the vehicle out of a no parking area near where he lived.
To put these matters in some context, Mr Fasi had been admitted to Hornsby Hospital (for 2 weeks) and Manly East Wing (for 4 weeks) and his licence had been consequently suspended, because of his mental health issues, since 6 January 2015. (Mr Fasi conceded as much at the time of his apprehension for both of the 15 April and 5 May 2015 incidents.) In addition, he was about to be evicted from his Housing Commission apartment.
Although the April and May 2015 offences resulted in concurrent, but suspended, sentences that totalled a period of 13 months, the actual circumstances they involved require their characterisation as matters of essentially regulatory non-compliance rather than involving harmful conduct. Because of their circumstances it is appropriate to regard them as having no real significance in the exercise of the visa revocation discretion.
The January 2016 offences
Although these three offences resulted in Mr Fasi’s third period of incarceration – from January to May 2016 – and were the subject of unsuccessful severity appeals in April 2016, no records of any sentencing or appeal reasons were in evidence.
It is apparent from the National Police Certificate that the first matter for which Mr Fasi was dealt on 20 January 2016 was a call up for re-sentencing in relation to the 9 months suspended sentence that had been imposed in May 2015 as a result of his disqualified driving offence in May 2015. But the reason for the call up is not apparent.
It may be that all three of the other offences dealt with on 20 January 2016 relate to a 12 January 2016 incident that is noted in the NSW Police incident records that were put into evidence. On that occasion, according to the incident records, Mr Fasi used a bicycle without the owner’s permission, delayed returning it, and was found, when apprehended by the police, to be in possession of “0.30 grams” of a white granulated substance (the precise nature of which was not otherwise apparent from the evidence). On the basis that this limited information discloses the circumstances of the offences involved, they do not involve significant harm and do not meaningfully inform the exercise of the revocation discretion.
The November 2016 convictions and sentences
These convictions related to incidents in late September and early October 2016. The September incident appears to have involved Mr Fasi stealing a pair of sunglasses from a chemist shop within the Dee Why Shopping Plaza. Some weeks earlier, and apparently as a result of a similar incident, he had been banned from the Plaza for a 12 month period.
The second incident involved events at Mr Fasi’s mother’s home on Saturday, 1 October 2016. Although Mr Fasi and his sister gave differing accounts of how the incident arose, they did not really differ about the substance of what it involved. According to Mr Fasi, his mother had asked him to bring her some money for his two children. He was supposed to go to the bus stop across the road from her home, and wait there for her to come out and collect the money. But Mr Fasi said that instead of waiting, and in the hope that he would be able to speak to the children, he decided to knock on his mother’s door. According to him, his sister answered the door but, unaware of her mother’s request, refused him entry and closed the door on him. He responded by banging on the door demanding to see the children. That account is broadly consistent with the corresponding police incident reports, and seems to have been accepted in the Local Court when Mr Fasi was convicted and sentenced. The initial detail, as to whether Mr Fasi’s agitated demanding state and banging on the door, preceded or followed the door being answered by his sister, was the substance of Mr Fasi and his sister’s differing versions. Given what followed, it is an essentially immaterial difference. (However, I note that, according to the sentencing magistrate’s remarks, Mr Fasi was dealt with on the basis of his account of the circumstances involved.)
Mr Fasi’s mother did come to the door, and attempted to calm the situation. Unable to do so, she went to close the door. He tried to hold it open, and flailed his arms at his mother and sister as they attempted to close the door on him again. After they had succeeded in that endeavour, he kicked at the door, yelled death threats, expressing his anger at being prevented from seeing his children, and kicked dents in the side panels of his sister’s car.
The original sentencing remarks in the Local Court on 2 November 2016 did not address the circumstances of the offences in any detail. But they do appear to have proceeded on the bases that (i) Mr Fasi’s mother had asked him to bring money for the children, (ii) his sister had refused him access, unaware of her mother’s request and, (iii) Mr Fasi’s regular depot medication had been delayed, through circumstances for which he was not to blame:- see paragraph 41 below.
At the time of his 2 November 2016 conviction and sentencing Mr Fasi had been in custody for several days, in relation to the matters that were the subject of his later conviction in February 2017. That fact seems to have been influential in explaining the custodial sentence that was imposed. About three weeks later Mr Fasi partly succeeded in a severity appeal. It resulted in a two month period of imprisonment, which he served concurrently on all four of the convictions involved. No information is available to explain the basis for that appeal result. However, it is relevant to note that Mr Fasi was in custody, in relation to the other charges, and remained in custody until the non-parole period for those charges ended in March 2017.
The February 2017 convictions
After his release from custody in May 2016 Mr Fasi lived at a friend’s home at Dee Why. However, following the events of late September and early October 2016, including Mr Fasi’s unsuccessful attempt on 5 October 2016 to be hospitalised under the Mental Health Act, and his detention in custody between 6 and 12 October 2016, he had become a disruptive, and consequently unwelcome, co-resident. But Mr Fasi did not acquiesce in his friend’s request to vacate the premises. He returned on a number of occasions, demanded entry and ultimately forced his way inside. This incident resulted in the friend approaching the police, with a view to obtaining an apprehended violence order. That possibility was apparently still under consideration a few days later when Mr Fasi was observed to have returned to his friend’s home, and was issued with a police direction to “move on”. Later that day the friend reported to police that Mr Fasi had demanded money from him both earlier in the day, and at a nearby shop, where Mr Fasi had accosted him after being issued with the “move-on” direction. On that second occasion Mr Fasi had grabbed hold of the friend and demanded that he withdraw money for him from an ATM.
It is apparent from the Local Court sentencing remarks on 22 February 2017 that the amount of money involved in Mr Fasi’s demands of his friend was only $50. It is also apparent that Mr Fasi was described in a contemporaneous mental health assessment report as suffering from schizoaffective disorder, and having been unmedicated at the time of the offences. It is also notable that the sentencing Local Court magistrate expressly stated that she would “not describe [Mr Fasi] as potentially and actually dangerous at this point”. She did, however, say that the offences were “of a serious nature”. The magistrate accepted that Mr Fasi’s medication non-compliance was a large factor in his offending but, without examining the extent to which Mr Fasi was culpably at fault in relation to that particular instance of non-compliance, also opined that in the absence of consistent compliance Mr Fasi had a significant potential for violence and did potentially put the community at risk. However, the magistrate also accepted that, in his most recent period of parole supervision (apparently from May to early September 2016) Mr Fasi had complied with all the supervision requirements and responded positively. The magistrate supposed that at least the second of Mr Fasi’s offences, because it involved “a physical interaction” with the friend, should be placed “in the mid range of offending”, after taking into account (i) Mr Fasi’s offence history, (ii) his comparatively recent release from jail (in May 2016) and, (iii) the fact that the offences occurred when Mr Fasi was on bail (in relation to the 1 October 2016 incident and the charges to which it gave rise).
Notwithstanding those latter remarks, but consistent with the magistrate’s earlier comments about Mr Fasi (i) not being “actually dangerous at this point” and (ii) his medication compliance issues being able to be addressed “over a lengthy period of supervision”, it is relevant to note the practical effect of the sentences that were imposed on Mr Fasi. By the time of the 22 February 2017 sentencing Mr Fasi had been in custody since 27 October 2016. Consequently, the effect of the February 2017 sentences, having regard to the March 2017 non-parole period they involved, was that Mr Fasi remained in custody for only a month after his February 2017 sentencing, and thereafter was subject to parole supervision until October 2017. This contributes to the view, suggested by other parts of the sentencing remarks, that the total 12 month sentences imposed were primarily directed at ensuring Mr Fasi would be subject to a significant period of post release parole supervision, to encourage future compliance with his medication. That view is further encouraged by the remarks made in the District Court in May 2017 when Mr Fasi’s severity appeal was dismissed. By that time Mr Fasi had, of course, been released from prison some 2 months earlier. The appeal was therefore a matter of no immediate practical significance to him. He did not appear on the hearing of the appeal, and it was dismissed in his absence. However, the District Court judge did remark that the sentences Mr Fasi had received were “perhaps” the most lenient the judge had seen. Those comments cannot be taken to indicate that the February 2017 sentences were inadequate. What they convey, properly understood, is the reality of the sentencing magistrate’s view that, subject to ongoing medication compliance Mr Fasi was not likely to be “potentially and actually dangerous”.
The September and October 2017 offences
The first two of these offences was part of the evidently episodically fractious relationship between Mr Fasi and the friend who had provided him with a place to stay at various times since at least his May 2016 release from prison. It appears that notwithstanding the incidents on 26 October 2016, and the Apprehended Violence Order the friend had obtained in November 2016, some time after his release from prison in late March 2017 Mr Fasi had returned to live with the friend. By late September 2017 however, Mr Fasi’s disruptive behaviour had apparently resulted in the friend withholding his hospitality and demanding that Mr Fasi leave. His refusal to leave resulted in the police being summoned and detaining Mr Fasi. Mr Fasi returned to the friend’s unit a few days later, and was again detained. The available evidence about these incidents suggests that they did not involve any violence, and as the details in the Schedule reveal, neither incident resulted in Mr Fasi’s conviction.
The last of Mr Fasi’s offences occurred on Saturday 23 September 2017. That was a few days after Mr Fasi had gone to his son’s school (he said to give him a cricket bat) but had left, without incident, after being alerted by a friend that he had been reported to the police for “terrorising the school”. It was also the day after Mr Fasi had been removed from his friend’s flat for the second time. And, presumably related to the dispute with his friend, the community health centre had not contacted him to deliver his regular “depot” medication. Mr Fasi said in his evidence that following these events he was starting to feel unwell. Nevertheless he rang his former wife and asked to see the children. He says she refused, and used intemperate, offensive language, including an accusation that he had chased people with a cricket bat at the school a few days earlier.[4] Mr Fasi says he reacted to her in a state of agitation, frustration and resentment. He made angry and repeated threats to kill her and “your whole fucking family”. Mr Fasi was apprehended shortly afterwards, and dealt with on 5 October 2017, when he was incarcerated until 23 October 2017. The sentencing remarks the Local Court magistrate made on that occasion recorded his impression that Mr Fasi’s conduct “just seemed like a tirade of abuse” and, so characterised, was an understandable, though unacceptable, reaction to his former wife’s refusal of access to the children.
[4]I specifically note that there is no evidence that Mr Fasi’s former wife was at the school when Mr Fasi attended. I also note that there is no evidence of any kind to indicate that Mr Fasi acted in any way improperly at the school. There is no report of any such incident in the available police records.
The apprehended violence orders
As is apparent from the details in the Schedule, Mr Fasi has been subject to orders of these kinds on various occasions since July 2010. The circumstances involved in the November 2016 and October 2017 orders are sufficiently apparent from the matters outlined earlier in these reasons:- see paragraphs 36, 37 and 42 above. No information is available about the circumstances that led to the 28 January 2014 order, other than that it related to Mr Fasi’s interaction with his wife and children. Similarly lacking is information about the matters relating to the 8 March 2016 order, other than the fact that it was obtained by his former wife and was probably the order involved in his 24 November 2016 conviction (in relation to the incident at his mother’s home in early October 2016).
The July 2010 order resulted from an argument when, in the course of trying to persuade his wife to give him money, perhaps to buy alcohol, he pushed her. The then Mrs Fasi was not hurt in this incident and refused to pursue any assault charges, but she expressed to the police concerns about her safety as a result of what she reported at the time as Mr Fasi’s “escalating aggressive nature”.
The February 2012 order was granted in response to complaints from Mr Fasi’s wife about two matters that occurred almost 12 months after their March 2011 separation. The first was an argument that appears to have resulted from Mr Fasi’s uninvited visit to see his children. In the argument that followed Mr Fasi reputedly threatened to damage something, but left without further incident. The second aspect of Mrs Fasi’s complaints appears to have been the phone calls Mr Fasi persistently made to her after the argument and which she regarded as increasingly irrational and aggressive. However, the police incident reports specifically negative any suggestion that Mr Fasi made any threats of personal violence and there is nothing to indicate that his conduct involved any actual offence.
The May 2012 order appears to have followed from an incident when, the day after visiting his parents, Mr Fasi returned to the unit where they lived and, finding it locked and his parents absent, he threw a chair at, and broke, a glass door.
It is readily enough apparent that since separating from his wife in March 2011 Mr Fasi has had angry and aggressive outbursts, principally in connection with the difficulty of being able to interact with his children. Nevertheless, there is very little evidence of Mr Fasi having engaged in direct personal violence, and no evidence that, despite his verbal threats, that he has caused any significant physical harm.
MR FASI’S MEDICAL HISTORY
In the first paragraph of these reasons I referred to Mr Fasi’s 1987 diagnosis of Bipolar Affective Disorder, and to the formal diagnoses recorded by his treating psychiatrist in 2017:- see paragraph 67 below. The characteristic features of Bipolar Affective Disorder are its episodic phases (of both mania and depression), the variable frequency of those phases, the influence (but not the necessity for) causal stressors, and normality of function between recurrent phases of the illness. Those features are apparent from the following clinical description of the character of the illness, as set out in the World Health Organisation’s “ICD-10” classification document:-
F31 Bipolar affective disorder
This disorder is characterized by repeated (i.e. at least two) episodes in which the patient's mood and activity levels are significantly disturbed, this disturbance consisting on some occasions of an elevation of mood and increased energy and activity (mania or hypomania), and on others of a lowering of mood and decreased energy and activity (depression). Characteristically, recovery is usually complete between episodes, and the incidence in the two sexes is more nearly equal than in other mood disorders. As patients who suffer only from repeated episodes of mania are comparatively rare, and resemble (in their family history, premorbid personality, age of onset, and long-term prognosis) those who also have at least occasional episodes of depression, such patients are classified as bipolar (F31.8).
Manic episodes usually begin abruptly and last for between 2 weeks and 4-5 months (median duration about 4 months). Depressions tend to last longer (median length about 6 months), though rarely for more than a year, except in the elderly. Episodes of both kinds often follow stressful life events or other mental trauma, but the presence of such stress is not essential for the diagnosis. The first episode may occur at any age from childhood to old age. The frequency of episodes and the pattern of remissions and relapses are both very variable, though remissions tend to get shorter as time goes on and depressions to become commoner and longer lasting after middle age.
As a result of the disorder Mr Fasi was hospitalised on at least three occasions in the 12 months following his original diagnosis. By late 1988 he had come under the care of, and regularly attended at, the Brookvale / Queenscliff Community Health Centre. His medication regime at that time involved fortnightly intramuscular ("depot") injections of modecate, and “other psychotropics” including Chlorpromazine, Benztropine and Clonazepam. He was living at home with his parents, and apparently working full time.
Mr Fasi appears to have spent most of 1989 living in Tonga, but he was also hospitalised there, and he returned to Australia in early March 1990. In October he presented himself to Manly Hospital and was thereafter transferred to Macquarie Hospital, where he was an inpatient from early November to Christmas Eve. At that time he was reported to have moved out of his parents’ home and to have been living with a cousin. He was working full time in two different jobs and also undertaking a diploma course. The clinical notes of his Macquarie Hospital admission record that he had stopped his medication for several days prior to his admission and had presented in an aggressive and violent state that had required sedation. This presentation contrasted with his father’s contemporaneous description of him as “quiet and diligent” when he was “between episodes”.
Following his December 1990 discharge Mr Fasi was again referred back to the Queenscliff / Brookvale Community Health Service. At the time his medications continued to include depot injections, as well as lithium carbonate, Largactil / chlorpromazine and Cogentin / Benztropine. However his medication compliance was thought to be problematic, especially in the light of his reportedly having stopped taking lithium prior to his presentation to Many Hospital in October.
Mr Fasi appears to have remained reasonably well for the next twelve months, but in about mid January 1992 he had a relapse and was scheduled under the Mental Health Act 1990 (NSW). As a result he was hospitalised again for about five weeks from mid January to the end of February 1992. During part of that period he was a day patient and was reported to be “quite erratic” in complying with his medication regime. That regime appears no longer to have included fortnightly depot medication.
In late 1992, and apparently as a result of the events underlying his various April 1993 convictions, Mr Fasi was again scheduled under the Mental Health Act 1990 and hospitalised at Macquarie Hospital. Shortly after his 4 January 1993 discharge from Macquarie Hospital he had a further relapse and was admitted to Manly Hospital. He remained there as a “temporary patient” until his discharge in mid March 1993. At that time he had however been subject to a three month “community treatment order” under Chapter 5 Part 3 of the Mental Health Act 1990. That order required him to report at least monthly to his local Community Health Centre, to permit monitoring of his medication compliance. The order had been put in place because of Mr Fasi’s past non-compliance with his prescribed daily medication regime, and his apparent (though subjectively denied) alcohol and cannabis abuse. The Macquarie Hospital discharge summary noted that periodic “depot” medication would likely be required if Mr Fasi failed to comply with the Community Treatment Order.
It is evident that Mr Fasi was medication compliant for the remainder of 1993 and the early part of 1994. But a Community Health Service attendance note of May 1994 reported that his compliance had become irregular, as a result of both subjective ambivalence and disorganisation. A later attendance note of 29 August 1994, following a previous warning to Mr Fasi about the need to moderate his alcohol use and take responsibility for his illness and follow advice, recorded that he had been excluded from the community centre because of his manic and disruptive behaviour. This note, and the matters recorded at about the same time, appear to relate to Mr Fasi’s mental health and behaviour at the time of his offences in August and September 1994.
For reasons that are not apparent from the available evidence, Mr Fasi spent most of the period from early September 1994 to late December 1995 in custody. He returned to the Brookvale Community Health Centre in late January 1996. At that time he appears to have been again subject to a community treatment order, with which he substantially complied for the remainder of 1996.
In early December 1998 Mr Fasi was again made the subject of a community treatment order. It required him to report twice weekly to the community health centre, and warned that non-compliance would result in peremptory action for breach of the order. That order was noted in June 1999 to have been “extremely effective” and to have resulted in Mr Fasi reducing his alcohol consumption, avoiding trouble with the police and obtaining employment. Its apparent success led to a continuation of the order for a further six months after June 1999. The available records of Mr Fasi’s medication regime indicate that it then again involved a fortnightly “depot” injection. There is no record of his then having any other prescribed medication.
Mr Fasi appears to have continued with “depot” medication, and to have had a correspondingly unremarkable social history, until shortly before November 2002. In that time he lived with friends - “CT” (for a few months in about 1999) and “BS” (apparently for most of the period between 1999 and 2002). Mr CT gave evidence vouching for Mr Fasi’s good conduct during the time they shared accommodation, and described Mr Fasi as sometimes shy and reserved. Mr BS had met Mr Fasi in about 1993 / 1994 when they played rugby league together. He described Mr Fasi’s attempts to obtain employment in the latter part of the 1990’s and vouched for Mr Fasi’s general good behaviour, and medication compliance.
Mr BS’s condign recollection of Mr Fasi’s general medication compliance appears to overlook some of the events from late 2002 to mid 2004. Some months before November 2002 Mr Fasi’s request to stop “depot” medication had been granted, but he had another relapse and again required hospitalisation. That episode was regarded (by the Superintendent of Psychiatry at the Community Health Centre) as providing clear evidence of Mr Fasi’s need for ongoing “depot” medication, his vulnerability to relapse, and the likelihood that he would become a “mentally ill person” (ie., someone requiring treatment or control or both) within three months, unless there was an ongoing community treatment order in place. An additional concern expressed at the time was that Mr Fasi’s relapse may have been contributed to by his ongoing use of recreational drugs. In the light of those various concerns, it seems that community treatment orders continued to be put in place until at least mid 2004. But in late July 2004 Mr Fasi was again hospitalised (for just over a fortnight) following another manic episode. His behaviour in connection with that episode is likely related to the circumstances of his (otherwise unexplained) September 2004 conviction. The relapse itself was also speculatively associated, in the contemporaneous Manly Hospital notes, with Mr Fasi’s reputedly known abuse of cannabis and methadone.
Mr Fasi’s mental health history appears to have been largely uneventful in the period between mid 2004 and late February 2012. That period overlaps with his September 2005 marriage, and subsequent separation in March 2011 – matters I address later in these reasons-: see paragraphs 69 & 88 below.
The circumstances underlying the July 2010 apprehended violence order (see paragraph 47 above) point to the likelihood that Mr Fasi’s marriage had become troubled some months before the ultimate separation in March 2011. Similarly, the fact of the February 2012 order, and the circumstances underlying it, imply a deterioration in Mr Fasi’s mental health. That implication is corroborated by police and Manly Hospital records. They indicate that on 15 February 2012 Mr Fasi had again been detained, under the Mental Health Act 2007 (NSW) and held at the Manly Hospital. There he was reported to have required sedation for his manic behaviour and to have acknowledged his abuse of marijuana and “ice”.
In late December 2012 Mr Fasi was again scheduled under the Mental Health Act 2007 and admitted to Many Hospital, in what the contemporaneous police records described as a “psychotic state” characterised by mood swings and aggressive behaviour. Not long afterwards Mr Fasi was an inpatient at Hornsby Hospital from 10 January to 18 February 2013. A subsequent 19 June 2013 report by the staff psychiatrist at the Queenscliff Community Health Centre reported that for several months Mr Fasi had not been attending the Centre, had not been receiving any medication and had, in all likelihood, been very unwell. The precise reason for this report is unclear. It may have been related to Mr Fasi’s subsequent sentencing on 28 August 2013. However that may be, the contents of the report are significant because they indicate that:
(a) Mr Fasi’s illness was complicated by his abuse of alcohol, cannabis and other “stimulants” and his limited capacity for abstinence
(b) his episodic hospital admissions were associated with manic episodes of his illness and acute behavioural disturbances including delusions, paranoia, overactivity, disorganisation and poor judgment
(c) his Illness had been so chronic and disabling that he had a poor prognosis and was at risk of further relapses
(d) since his February 2013 hospital discharge he had been subject to a community treatment order and it was intended that a new order would be put in place for the period until at least April 2014
(e) under the community treatment order Mr Fasi’s only medication was the fortnightly antipsychotic depot medication injection
(f) Mr Fasi had complied with the treatment order in relation to his medication and reporting, and remained stable, despite relapsing into use of cannabinoids and alcohol.
The anticipated continued operation of community treatment orders after June 2013 was however disappointed by the fact of Mr Fasi’s incarceration from July to November 2013. Following his release, and as part of his parole conditions he was admitted to a drug and alcohol detoxification facility at St Leonards. But it is apparent that he later returned to substance abuse. Following his apprehension in late November 2014, Mr Fasi was recorded by police as exhibiting signs of substance intoxication and a blood alcohol analysis detected the presence of both cannabinoids and methylamphetamine. Not long afterwards Mr Fasi was again hospitalised at Manly following another manic relapse. This was recorded in the contemporaneous hospital notes as having occurred against a background of medication non-compliance and abuse of methamphetamines. At the time of his initial admission Mr Fasi was recorded as being extremely aggressive, to the point of requiring sedation and admission to the mental health intensive care unit. At the time of his discharge in early January 2015, Mr Fasi was noted to have become mentally stable but at risk of deterioration, because of his history of medication non-compliance and possible drug use. The psychiatric registrar who completed the discharge report opined that when Mr Fasi was unwell there was a “very high” risk of aggression and damage to his reputation. The registrar thought the minimum necessity to obviate those risks was to have in place a community treatment order.
Later in these reasons I outline the application requirements for, and the effect of, a community treatment order under the Mental Health Act 2007:- see paragraph 79 below. The available evidence does not contain either the documents that would have been necessary to support an application for such an order, or any evidence of such an order having been made at any time after January 2015. However, other records establish, although in circumstances not explored in the evidence, that from early July to about October 2015 Mr Fasi spent time as a resident of two different drug and alcohol rehabilitation services and also as an inpatient at Manly Hospital. In his oral evidence in the review proceedings Mr Fasi claimed not to have used methamphetamines since his discharge from this facility, but acknowledged continued use of cannabis, including at the time of the 1 October 2016 offence.
Whether or not it was the subject of a formal order, the continuity of Mr Fasi’s community treatment would certainly have been interrupted by his various periods of incarceration between January 2016 and March 2017. But Mr Fasi did report back to the Queenscliff Community Health Centre in early May 2017. At that time a psychiatrist who was well familiar with Mr Fasi, and had in fact treated him at various times since his 1987 diagnosis, provided a diagnosis summary, details of Mr Fasi’s current medication and an overall risk assessment. The diagnoses used the classifications in the World Health Organisation’s “ICD-10 Classification of Mental and Behavioural Disorders” and included Bipolar Affective Disorder (ICD10 F31), Mental and behavioural disorder due to the use of cannabinoids (ICD10 F12) and Mental and behavioural disorder due to use of other stimulants, including caffeine, acute intoxication, methylamphetamine (ICD10 F15.01). The report detailed Mr Fasi’s only current medication as a fortnightly “depot” injection - of Zuclopenthixol decanoate. (That appears to have been Mr Fasi’s only medication since early January 2015). The report indicated that Mr Fasi required intensive and extended care. He presented a medium risk of violence and aggression “and can be verbally threatening and physically aggressive particularly when he is under the influence of methamphetamine”. However, the psychiatrist reported Mr Fasi’s claim to have been ice abstinent both during and since his periods of incarceration in 2016 and 2017 and noted that Mr Fasi showed no indication of being under the influence of ice. The Community Health Centre records suggest that in around April 2017 immediately after his release from custody Mr Fasi had resumed his supervised medication treatment, had continued to attend until his September 2017 incarceration, and that his medication remained unchanged until after he had been taken into immigration detention.
What emerges from the preceding account of Mr Fasi’s mental health history is one of episodic, but overall chronic and significant illness. That impression is confirmed by the contents of a 28 September 2017 review note prepared by Mr Fasi’s Community Health Centre. The note stated that Mr Fasi was stable on his current medication regime (only depot injection) but that his drug and alcohol misuse had been responsible for major mood swings. Part of the review records that Mr Fasi had “HoNOs”[5] scores indicating a moderate problem with his actual illness symptoms, but severe difficulties with behaviour and social functioning.
[5] The HoNOs (Health of the Nation Outcome Scales) criteria were developed by the Royal College of Psychiatrists’ Research Unit on commission by the UK Department of Health in 1993. A HoNOS assessment involves 12 scales used by clinical staff to rate the severity of mental illness, using numerical scores from 0 to 4 on each scale. The scale scores are then combined to provide total scores for Behaviour, Impairment, Symptoms and Social functioning.
It is clear from the long mental health history that his ability to function depends on continued medication. When he is medication compliant, socially supported and drug abstinent he has the capacity to remain stable. That is strikingly illustrated by the 2004 to 2010 / 2011 period, during which he met his future wife, married, had two children and remained in employment (until February 2012).
Mr Fasi’s problematic medication compliance has been a reportedly significant factor in his relapses and behaviour both in the period before 2004, and again after the 2011 breakdown of his marriage and separation from his wife and children. What is not entirely clear however, is the precise nature and significance of that non-compliance. An attempt to reach an informed conclusion about those matters requires careful attention to both his past history, and his recent treatment in immigration detention.
IHMS RECORDS
Mr Fasi’s September / October 2017 incarceration removed him from the treatment regime available at his community health centre, and he received no medication whilst in prison. Unsurprisingly, therefore, his initial presentation to International Health and Medical Services (“IHMS”) shortly after entering immigration detention included accounts of bizarre, inappropriate and manic behaviour, with some psychotic symptoms. His behaviour was so inappropriate that he was assessed as being at high risk of harm from other detainees. For several weeks his mental health was reviewed daily. That culminated in an assessment that he was unfit to travel and in an attempt to have him admitted to Liverpool Hospital in early November 2017.
By about mid November 2017, following further psychiatric review, Mr Fasi began to receive appropriate medication. By early December 2017 he was reported as having a stable mental state, without functional thought disorder. But his own subjective impression of recovery led him to report that he could stop his daily medication and continue on with only the depot medication – something that he stated had been his previous practice. But the reviewing psychiatrist emphasised the importance of Mr Fasi continuing with all his mediation, and he agreed to persevere.
Mr Fasi’s actual commitment to ongoing medication compliance, other than in relation to depot medication, was incomplete. By late March 2018 following concern about reported deterioration in his mental state, the reviewing psychiatrist recorded that Mr Fasi denied any perception or mood disorders and interacted in a way she described as “charming, slightly over familiar”. However the psychiatrist also noted that Mr Fasi was not complying with his daily mood disorder medication and was only prepared to take what she regarded as “sub therapeutic” doses. The psychiatrist lamented that Mr Fasi was compromising his health and risking relapses of his condition because he “continues to take sub-therapeutic doses of mood stabilisers and drink excessive caffeine”.
Thereafter the IHMS medical records cover the period up to the middle of June 2018. In that period Mr Fasi continued with his depot medication and generally complied with the other parts of his “sub therapeutic” medication regime. During that period, despite some reports of occasionally missing some daily medication, he was consistently reported as polite, and as posing no risk of harm.
MENTAL HEALTH LEGISLATION
The totality of the available information clearly reveals that Mr Fasi has a severe psychiatric illness and that his ability to function in the community depends on ongoing medication. This is the view that has been consistently stated in the treatment records of his community health service, and is implicit in the IHMS records. The November 2003 psychiatrist’s opinion was that Mr Fasi was “substantially vulnerable to relapse without depot medication” and would become a “mentally ill person” without compulsory treatment:- see paragraph 61 above. The same opinion is really involved in the June 2013 report:- see paragraph 64 above.
In order to appreciate the significance of that opinion it is necessary to have regard to the statutory context to which the psychiatrists’ opinions were addressed. As at 2013 that context was provided by the NSW Mental Health Act 2007 (“MHA”).[6] Under the Act a person is mentally ill if, because of their mental illness there are "reasonable grounds" for considering "treatment or control" is necessary for either their own protection or the protection of others "from serious harm":- MHA s 14. A person is mentally disordered if their behaviour is so irrational that their temporary care, treatment or control is necessary either for their own protection, or the protection of others, "from serious physical harm":- see MHA s 15.
[6]Similar provisions exist in all Australian States and Territories:- see the Royal Australian and New Zealand College of Psychiatrists – Mental health legislation – comparison tables as at 30 June 2017.
A person who is either mentally ill or mentally disordered may be compulsorily detained in a range of circumstances. They include (i) apprehension by police (where there is a likelihood of serious physical harm), (ii) delivery by ambulance officers, (iii) court order, (iv) certification by a medical practitioner, and (v) the written request of a relative or friend:- see MHA ss 18, 22, 26. After initial detention, the person's ongoing detention is subject to further medical examination and ultimately, determination (and subsequent periodic review) by the Mental Health Tribunal following a formal mental health enquiry:- see MHA ss 27, 35 & 37.
In any mental health enquiry one of the basic principles to be applied is that a mentally ill (or mentally disordered) person should receive the best possible care and treatment in the least restrictive environment that enables their effective care and treatment:- see MHA s 68. This principle reflects a statutory standard that is common to all Australian States and Territories:- see Mental Health Act 2014 (Vic) s 11(1); Mental Health and Related Services Act 1998 (NT) s 9; Mental Health Act 2016 (Qld) s 5; Mental Health Act 2009 (SA) s 7; Mental Health Act 2013 (Tas) s 15 & Schedule 1; Mental Health Act 2014 (WA) s 11 and Schedule 1.
Consistent with the two concepts of effective care and least restrictive environment, a mentally ill person may be required to accept involuntary treatment in the community, under a “community treatment order”. Community treatment orders may be made in any of the following circumstances (i) after a formal mental health enquiry, (ii) as a result of a subsequent mental health review, or (iii) in response to a specific application:- see MHA s 51. Applications for such a "community treatment order" may be made by (i) an authorised officer in a mental health facility in which a person has been detained, (ii) any medical practitioner familiar with the person's history, (iii) a director of a community treatment mental health facility familiar with the person's clinical history or, (iv) a person's carer:- see MHA s 51 & Mental Health Regulation 2013 (NSW) reg 8. Community treatment orders are made by the Mental Health Tribunal. In making an order the Tribunal must have regard to any report about previous community treatment orders, and be satisfied that (i) an appropriate treatment plan has been prepared and is available, (ii) no less restrictive care is appropriate and reasonably available, (iii) the person has a history of refusing to accept appropriate treatment or, (iv) the person has a history of being subject to such an order and is likely to relapse if the order is not granted:- see MHA s 53. A person must comply with a community treatment order, and refusal to do so may result in their apprehension and detention in a mental health facility:- see MHA ss 58.
Against the background of these legislative provisions it is relevant to note that the evidence establishes Mr Fasi has been subject to community treatment orders in the following periods (and apparently only during those periods):-
(a) 1993:- March to June:- see paragraph 56 above.
(b) 1996:- January / February 1996 to (date unknown):- see paragraph 58 above.
(c) 1998:- December 1998 to May 1999:- see paragraph 59 above.
(d) 2003:- November 2003 to April 2004:- see paragraph 61 above.
(e) 2013:- February 2013 to February 2014 (although Mr Fasi was incarcerated between July and December 2013):- see paragraphs 64 & 65 above.
The evidence does not establish, and the available records suggest the unlikelihood, that Mr Fasi was subject to a community treatment order after January 2015:- see paragraph 67 above.
CONCLUSION ON MEDICAL HISTORY
I have previously remarked on Mr Fasi’s dependence on regular medication. When he is medication compliant, socially supported, and drug abstinent, he has been capable of a productive life. That impression is strikingly illustrated by his stability between 2004 and 2010 / 2011. I have also remarked on the imprecision of the complaints of his medication non-compliance. Sometimes that complaint has related to not taking daily oral antipsychotic medication (in 1992 – 1993; 1998 – 1999, June 2013, and December 2014). Sometimes it has related to his “depot” medication. The significance of these varying complaints requires consideration against the background that, for significant periods, Mr Fasi’s only prescribed medication has been fortnightly “depot” injections. Those periods appear to have been from 2004 to 2011, again in 2013, and from 2015 to October 2017. Furthermore, although he has been taking some oral antipsychotic medication in immigration detention, the IHMS records indicate the prescribing psychiatrist’s view that the doses involved are actually “sub therapeutic”.
The conclusion to be drawn from the totality of the available treatment information is that Mr Fasi has demonstrated the capacity to remain stable with only depot medication. That is essentially the view his treating psychiatrist expressed in both his 2017 reports. It likely explains, and provides some justification for, Mr Fasi’s reluctance to accept the different medication regime preferred by the IHMS psychiatrists.
What tends to confound the sanguine view of the likely sufficiency of a depot medication regime is Mr Fasi’s concurrent diagnoses of mental and behavioural orders related to substance abuse. He concedes both significant past (pre 2015) methamphetamine use and also the use of cannabis. He concedes that his relapse into heavy cannabis use likely contributed to the 1 October 2016 offences, but in May 2017 he reported to his psychiatrist that he engaged in only occasional cannabis use. In his evidence in the current proceedings he proffered the (uncorroborated, and unlikely to be accurate) proposition that his psychiatrist had encouraged some degree of cannabis use, as a permissible sedative and appetite stimulant.
MR FASI’S PERSONAL CIRCUMSTANCES
After coming to Australia in 1978 Mr Fasi lived with his parents, and attended school in suburban Sydney. He described his upbringing and schooling as wonderful, sullied by what he regarded as excessive discipline related to his parent’s religious commitment. He said that he left home at the age of about 14, and lived for a time either with a cousin or on the street. However, by the time of his diagnosis in 1987 / 1988 Mr Fasi was living with his parents. After returning from Tonga in early 1990, he again lived with his parents. He moved out for a short time in late 1990, but at the end of December 1990 he was discharged from hospital into his parents care, and he appears to have continued to live with them, at least for substantial periods, up until some time in the late 1990’s, and again in the period between about 2002 / 2003 and 2004 / 2005, before he started his relationship with, and in 2005 married, his wife.
I infer from those accommodation details, related comments in the relevant Community Health Centre notes, and the oral evidence of the family members (to which I refer later in these reasons) that the relationship between Mr Fasi and his parents was difficult at times. That difficulty is likely to have been associated with his own illness. But a significant degree of parental support is implicit in his continued residence in the family home and evident in the reality that Mr Fasi worked with his father at a cable making factory from about 1990 to 1993 (prior to the relapse that occurred in that year).
It is not clear that Mr Fasi had any significant employment between 1993 and 2000. In one part of his October 2017 representations in response to the visa cancellation decision Mr Fasi claimed to have worked as a labourer throughout the period. However other evidence establishes that he received a disability support pension from July 1993 until June 2002. After that date, up until early 2005, there were short periods when he received either newstart or sickness allowances. Notwithstanding his apparently concurrent receipt of a disability support pension, in about mid 2000 Mr Fasi began to work as a machine operator at a printing company. He continued to work in employment of that kind until the latter part of 2002. Thereafter, from some time in late 2004 until his relapse and hospitalisation in February 2012, Mr Fasi was continuously employed in various printing related businesses.
That period of course overlapped with Mr Fasi’s supportive relationship with his wife. They had met in late 2003 and married in September 2005, a few months before the birth of their daughter. Their son was born four years later, in June 2009. Mr Fasi credits his wife, and the encouragement and support she provided, with his sustained good mental health and productive functioning in that period from 2004 onwards. Part of that support was, according to Mr Fasi, her encouragement for him to comply with his medication. At one point in his oral evidence Mr Fasi said that she encouraged him to take his daily medication. However, at another point he said that for the bulk of the period his only medication had been fortnightly “depot” injections provided by the Community Health Service team. The latter proposition, rather than the former, was corroborated by the oral evidence of Mr Fasi’s former wife.
It is apparent from matters to which I have previously referred (see paragraphs 47 & 69) that Mr Fasi’s marriage relationship had begun to deteriorate by the latter part of 2010, and that the March 2011 separation was substantially contributed to by his substance abuse, and its effect in aggravating his underlying manic illness. The combined effect of the relationship breakdown, his medication non-compliance and substance abuse was the aggravation of his illness and a catastrophic deterioration in his personal circumstances.
Following his relapse and hospitalisation in February 2012 (see paragraphs 48 & 63 above) Mr Fasi lost his employment. He has not worked since then. Some time in 2013 his father died. In the same year he was granted a disability support pension, because of his mental health disorder. That eligibility has continued (subject to his periods of incarceration and visa cancellation). In about October 2014 he obtained a negotiated settlement of a permanent disability claim on the superannuation insurance policy related to his previous employment. Mr Fasi’s oral evidence in the review proceedings was that nothing remained of the approximately $50,000 balance of the settlement amount that he received.
It was in late 2013 (following his release from prison) and again towards the end of 2014 that Mr Fasi was hospitalised, against the background of persistent medication non-compliance and consequential relapses of his bipolar illness. At the time of his December 2014 hospitalisation he was reported to have been evicted from his Housing Department accommodation, as a result of his manic behaviour. His illness and precarious circumstances prompted orders being made (apparently in late February 2015) placing his financial affairs under the management of the NSW Trustee and Guardian. (The orders remained current at the time of the review proceedings.)
Financial and employment conditions:- The Tongan economy is heavily reliant on subsistence agriculture and external income. External income includes both foreign aid and remittances from expatriates. Remittances of the latter kind are said to account for 33% of Tonga’s GDP. According to a US Department of State April 2018 country report, whilst few Tongans live in destitution, a significant proportion of the population struggles to pay for more than basic needs such as food, education, transport and utilities. Wage guidelines are set by the Ministry of Commerce, Consumer, Trade, Innovation and Labour, but there is no statutory minimum wage. Available information about wage rates for people with backgrounds and qualifications similar to Mr Fasi (ignoring his psychiatric illness) suggests a net annual salary approximating AUD4,800. The overall unemployment rate is regarded as somewhat problematic – because of the existence of a significant “informal” economy. Nevertheless, the official unemployment rate was about 5% in 2017, with the bulk of the work force engaged in “medium skilled occupations” – a category that would include skilled agricultural workers, tradespeople and plant machinists.
The information provided disclosed the existence of an age pension scheme for public sector employees, but no information about any comprehensive social welfare system in Tonga. It specifically did not disclose whether any unemployment benefits scheme existed. According to various reports dated between 2014 and 2017 family, extended family and kinship ties are very significant societal factors and provide the main social protection systems, perhaps especially outside the capital city of Nuku’alofa. It is in that context that returnees to Tonga are likely to face considerable difficulty. That topic was addressed in a March 2017, newspaper article dealing with the situation of returnees who had been deported from the US. The article quoted both the United States Ambassador to Tonga and Tonga’s Deputy Prime Minister and Minister for Foreign Affairs. They noted the significant challenges that returnees faced. Apart from the obvious difficulty of their lack of familiarity with Tonga’s traditions and culture, they had no access to social welfare programs to assist their integration.
Against this background it is necessary to turn to the extent of Mr Fasi’s familiarity with, and family connections in, Tonga. The starting point is his family’s origins, and remaining resident relatives, in the Nuku’alofa area. A little while after his 1987 / 1988 diagnosis Mr Fasi’s parents sent him back to Tonga. It may be inferred that he lived there with one or more relatives, but the precise details were not explored in the evidence. He returned to Australia in early March 1990. His aunt, Mrs SL, reported that the reasons for his return were (i) inadequate treatment available in Tonga, (ii) his condition had worsened and (iii) the relatives had been unable to help or control him. There is no reason to doubt that explanation. Mr Fasi returned to Tonga for short trips in 2005 and 2007, and no doubt renewed some acquaintance with his relatives, but again the details were imprecise.
In any event short hotel stays, on holiday trips 15 years after his previous presence in Tonga, and now some eleven years ago, are not significantly probative of the circumstances likely to confront Mr Fasi if he were to return permanently. The only confident details of family members in Tonga is that Mr Fasi’s mother has two surviving brothers and a sister, all of whom live in or near Nuku’alofa. The aunt is 73 years old, retired, and lives with her daughter. Mrs SL reported that she has no income. Mr RL said he and his wife occasionally help her by sending food gifts from Australia. One uncle is an academic who works for an Australian Government aid agency whose focus is on training and development with a view to enhancing employment prospects in Tonga. He lives in Nuku’alofa with his wife and two young children (aged 7 and 14). The other uncle lives on a farm about 30 kilometres from Nuku’alofa. It is an inherently modest enterprise, but large and successful enough to support the uncle, his three adult children (one of whom is a Tonga policeman) and three employees. Another of Mr Fasi’s maternal uncles died in 2017. There was also some scant evidence of some Tongan resident relatives on Mr Fasi’s father’s side of the family.
Although one can infer from the preceding details that Mr Fasi is likely to have some relatives in and around the Nuku’alofa area, there is no evidence to justify anything more than speculative hope as to whether they could or would be in a position to offer him meaningful practical assistance if he were to be returned. Indeed, since the evidence clearly establishes the reality that he has not enjoyed any meaningful practical support from his Sydney resident family members (irrespective of whether they are part of his immediate or extended family) it is at best speculative, and more realistically, rather unlikely, that his situation in that regard would be any different if he were returned to Tonga. In those circumstances there is no reasonable basis for satisfaction that Mr Fasi would receive any significant practical assistance from Tongan resident family members if he were to return there. Nor is there an adequate evidentiary foundation for satisfaction that he would receive assistance from his Sydney resident family members.
The Respondent, encouraged by Mr Fasi’s claim that he has a current job offer and would be willing and able to return to work following his release from immigration detention, contended that Mr Fasi would be able to find work in Tonga, and consequently support himself. To the extent that this contention rests on Mr Fasi’s job offer assertion, its lack of substance is tellingly illustrated by being placed alongside some of Mr Fasi’s claims (in his October 2017 representations) that his “family unit is very close”, and that the family members would be “absolutely devastated” if he were to be returned to Tonga. The evidence that both of Mr Fasi’s sisters gave in the review proceedings demonstrates beyond question that those claims could not be relied on as accurate. His uncorroborated job offer claim is in the same category. The reality is that Mr Fasi has been receiving a disability support pension, solely because of the disabilities associated with his psychiatric condition, since April 2012. When regard is had to the disability support pension qualification criteria (see the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011) it is clear that Mr Fasi’s illness must have been regarded, throughout that period as giving rise to “severe” adverse functional impact on a wide range of ordinary activities. Consistent with that view, in 2014 he succeeded in obtaining settlement of a total and permanent disability claim (on the insurance coverage provided under the superannuation entitlements that applied to him during his employment prior to February 2012).
Demonstrated past incapacity arising from mental illness does not necessarily preclude the possibility of future improvement and, in that context Mr Fasi has in the past returned to employment (for a significant period) after previously establishing an entitlement to a disability support pension. But the June 2013 report from his treating psychiatrist described Mr Fasi as having a “poor prognosis” because of the chronicity of his illness and the risk of future relapses:- see paragraph 64 above. The circumstances of the intervening years, with Mr Fasi’s continuing unemployment, disability pension entitlement, periodic incarceration, lack of assets, and ongoing financial supervision (as a result of the February 2015 appointment of the NSW Trustee and Guardian) underscore the justification for the “poor prognosis” opinion.
An objective assessment requires the conclusion that if Mr Fasi were to be returned to Tonga, he would be unlikely to (i) receive any ongoing treatment for his illness, (ii) be able to derive an income from working, (iii) derive an income from any other source, (iv) obtain significant assistance from members of his extended family. The delegate accepted that Mr Fasi’s return to Tonga would expose him to significant hardship. But the delegate proceeded on the basis that they would be confined to an initial period and involve only “some early challenges”. The delegate’s finding, unaccompanied by any meaningful or detailed examination of the realities likely to confront Mr Fasi in Tonga, was a euphemism and inaccurate. Mr Fasi would not, in any realistic sense, be able to establish himself in Tonga or maintain a basic standard of living. A realistic evaluation of the available information points to the most likely scenario being one in which he would be untreated, destitute and become “mentally ill” (that is to say at risk of significant harm to himself or others) within a short space of time:- see paragraph 76 above.
OVERALL EVALUATION
As I have indicated earlier in these reasons, both the primary protective consideration, and community expectation favour the non-revocation of the visa cancellation decision. The weight that would otherwise attach to both those considerations is however tempered by his long time Australian residence (especially given its early age commencement), the significance of his long standing psychiatric illness as a causative factor in his offending, the limited harm demonstrably associated with his past offending, and the available prophylactic measures to minimise the risk of future harm.
The known unfavourable views of the persons most directly and adversely affected by Mr Fasi’s offending conduct also point towards the non-revocation decision. But the significance of those views in the overall assessment must also be determined against the background of the circumstances to which I have referred in the preceding paragraph.
The best interests of Mr Fasi’s children do not point clearly in favour of either revocation or non-revocation of his visa – for the reasons I have previously stated:- see paragraphs 111 & 112 above.
On the other hand, given the severity of Mr Fasi’s illness, and the incapacity it entails, his return to Tonga would be likely to give rise to much more than hardship. It would, much more likely than not, involve destitution and serious and untreated illness. Those prospects, when evaluated with his significant Australian ties, and against the other relevant considerations, requires the conclusion that, in the presently known circumstances, the preferable decision is to revoke the visa cancellation decision.
Schedule - Fasi And Minister for Home Affairs
Adult Convictions, Offences and Orders - summaryReasons paragraphs 24 & 25
Convictions / Offences AVO Offences Penalty Penalty (actual sentence) Bond or Parole conditions No
Age
B'hav'r
Violence
Vehicle
AVO
Drugs
D'hnsty
Sexual
Order
Date
Type
Custodial (or AVO) Period
Bond
Fine
Breach
Event
Court
(months)
Start
Non-Parole
End
(months)
$
1
21
1
23-Oct-91
Driving whilst unlicensed
150
2
21
2
23-Oct-91
Driving while under influence of alcohol
500
Licence disqualified for 12 months
3
23
1
22-Dec-92 ?
14-Apr-93
Using offensive language
150
4
23
2
22-Dec-92 ?
15-Apr-93
Offensive manner
100
5
23
1
22-Dec-92 ?
15-Apr-93
Assault police
200
6
23
2
22-Dec-92 ?
15-Apr-93
Resist arrest
100
7
23
3
22-Dec-92 ?
15-Apr-93
Malicious damage
100
8
23
3
15-Dec-93
Driving whilst unlicensed
500
Licence disqualified for 6 months
9
23
4
15-Dec-93
Driving unregistered motor vehicle
250
10
23
5
15-Dec-93
Driving uninsured motor vehicle
250
11
23
6
15-Dec-93
Driving negligently
200
12
23
7
15-Dec-93
Failing to stop after accident
200
14
24
5
14-Jul-93
Malicious damage x 2
1000
fine default
15
24
3
17-Aug-94 ?
26-Aug-94
Assault occasioning actual bodily harm
24
500
s558 - deferred sentence
16
24
6
17-Aug-94 ?
26-Aug-94
Malicious damage
24
s556a--no conviction ($35 compensation)
18
24
5
22-Aug-94 ?
2-Sep-94
Assault x 2
8
2-Sep-94
1-Mar-95
(unexplained sentence / custody disparity
19
24
7
22-Aug-94 ?
2-Sep-94
Malicious damage
300
20
24
8
20-Sep-94
Malicious damage
500
Breach recognisance
21
24
6
7-Oct-94
Assault
s556a--no conviction
24
25
11
5-Apr-95
Malicious damage x 3
12
s558 - deferred sentence
25
25
12
31-Aug-95
Malicious damage
500
26
25
1
12-Sep-95
Breach AVO
24
s558 - deferred sentence
27
25
7
12-Sep-95
Assault
24
s558 - deferred sentence
28
25
2
20-Oct-95
Breach AVO
200
29
25
1
22-Nov-95
Stealing
150
30
25
13
7-Dec-95
Offensive conduct
100
31
25
8
7-Dec-95
Assault
800
32
25
14
7-Dec-95
Fail to leave licence premises
100
33
26
1
19-Mar-97
Possession of prohibited drug
400
34
27
1
12-Nov-97
Assault with act of indecency
36
1000
s558 - deferred sentence
35
27
15
24-Dec-97
Destroy/damage property <=$2000
500
36
27
9
13-Feb-98
Assualt occasioning actual bodily harm
24
1000
s558 - deferred sentence
37
28
16
27-Jul-98
Destroy/damage property <=$2000
500
38
31
8
23-Jan-02
Driving unregistered motor vehicle
s10 - no conviction
39
31
9
23-Jan-02
Driving when licence cancelled
s10 - no conviction
40
33
2
12-May-03
Possession of prohibited drug
s10 - no conviction
41
34
10
21-Sep-04
Common assault
24
s9 - GB
Sub-total
16
10
9
2
2
1
1
1
1-Jul-10
1-Jul-10
1-Aug-11
wife and children
2
11-Feb-12
11-Feb-12
wife and children
3
15-May-12
15-May-12
mother (?) parents - broke glass door - CCTV footage
42
43
3
28-Aug-13
Breach AVO
10
7-Jul-13
6-Nov-13
6-Nov-13
43
43
11
28-Aug-13
Common assault (domestic violence)
10
7-Jul-13
6-Nov-13
6-Nov-13
44
43
10
28-Aug-13
Driving recklessly
4
7-Jul-13
6-Nov-13
Licence disqualified for 12 months
45
43
12
28-Aug-13
Assault occasioning actual bodily harm
4
7-Jul-13
6-Nov-13
46
43
3
28-Aug-13
Possession of prohibited drug
s10 - no conviction
4
28-Jan-14
28-Jan-14
27-Jan-16
wife and children
47
44
13
4-Mar-15
Stalk/intimidate intend to fear harm
24
s9 - GB
48
44
17
4-Mar-15
Destroy/damage property <=$2000
24
s9 - GB
49
44
2
4-Mar-15
Shoplifting <=$2000
s10 - no conviction
50
45
11
4-Apr-15
27-May-15
Employ unlicensed driver
see 2 November 2016 call up
51
12
15-Apr-15
27-May-15
Driving during disqualification period
4
27-May-15
26-Sep-15
s12 - counselling, educational dev, D & A rehab
52
45
13
4-May-15
27-May-15
Driving during disqualification period
9
27-May-15
26-Feb-16
s12 - counselling, educational dev, D & A rehab
53
45
14
16-Sep-15
Driving under influence of drugs
400
Licence disqualified for 6 months
46
12-Jan-16 ?
20-Jan-16
Driving during disqualification period (call up)
9
12-Jan-16
11-May-16
11-May-16
54
46
3
12-Jan-16 ?
20-Jan-16
Larceny <= $2000
4
12-Jan-16
11-May-16
11-May-16
55
46
18
12-Jan-16 ?
20-Jan-16
Destroy/damage property
2
12-Jan-16
11-Mar-16
56
46
4
12-Jan-16 ?
20-Jan-16
Possession of prohibited drug
s10 - no conviction
5
8-Mar-16
AVO
8-Mar-16
7-Mar-17
wife and children
6
2-Nov-16
AVO x 2 (no admission - by consent)
2-Nov-16
1-Nov-17
Sister // friend
46
4-Apr-15
2-Nov-16
Employ etc unlicensed driving (call up)
s10(a) - no conviction - reversed 27 May 2015 order
57
46
19
29-Sep-16 ?
2-Nov-16
Enter lands without lawful excuse
s10 - no conviction
58
46
4
29-Sep-16 ?
2-Nov-16
Shoplifting <=$2000
s10 - no conviction
59
46
4
1-Oct-16
24-Nov-16
Breach AVO
2
24-Oct-16
23-Dec-16
mother's house - frustrated attempt to see children
60
46
14
1-Oct-16
24-Nov-16
Stalk/intimidate intend to fear harm
2
24-Oct-16
23-Dec-16
61
46
15
1-Oct-16
24-Nov-16
Common assault (domestic violence)
2
24-Oct-16
23-Dec-16
62
46
20
1-Oct-16
24-Nov-16
Destroy/damage property (domestic violence)
2
24-Oct-16
23-Dec-16
63
46
21
26-Oct-16
22-Feb-17
Refuse/fail comply with direction
s10 - no conviction
64
5
26-Oct-16
22-Feb-17
Demand property with intent to steal
12
26-Oct-16
25-Mar-17
25-Mar-17
65
46
6
26-Oct-16
22-Feb-17
Demand property with intent to steal
12
26-Oct-16
25-Feb-17
25-Mar-17
66
47
5
19-Sep-17
19-Sep-17
Breach AVO
s10 - no conviction
67
47
6
22-Sep-17
22-Sep-17
Breach AVO
s10 - no conviction
68
47
16
23-Sep-17
5-Oct-17
Stalk/intimidate intend to fear harm (domestic)
1
24-Sep-17
23-Oct-17
7
5-Oct-17
5-Oct-17
4-Oct-18
wife and children
Sub-total
21
16
14
6
4
6
1
97
10650
Total
68
Note 1 :
"(s 556A)":- a matter where no conviction was recorded - NSW Crimes Act s 556A (repealed 1999)
Note 2 :
"(s 558)":- a matter where sentencing was deferred and the offender entered into a good behaviour recognisance - NSW Crimes Act s 558 (repealed 1999)
Note 3 :
"(s 9)":- a release order, subject to good behaviour conditions, imposed instead of a sentence - s 9 of the (NSW) Crimes (Sentencing Procedure) Act (1999)
Note 4:
"(s 10)":- a conditional release order where no conviction was recorded - s 10 (NSW) Crimes (Sentencing Procedure) Act (1999)
Note 5:
"(s 10A)" :- a matter where a conviction was recorded, but no penalty imposed - s 10A (NSW) Crimes (Sentencing Procedure) Act (1999)
Note 6:
"(s 12)":- a sentence suspended under s 12 of the (NSW) Crimes (Sentencing Procedure) Act (1999) - the provision was repealed in 2017
Note 7:
No conviction recorded for these offences
I certify that the preceding 151 (one hundred and fifty -one) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member
..........................[sgd]..........................................
Associate
Dated: 29 October 2018
Date(s) of hearing: 9, 10, 11, 15 & 19 October 2018 Solicitors for the Applicant: F Nikjoo, Nikjoo Lawyers Solicitors for the Respondent: T Galvin, Minter Ellison
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