GWFM and Minister for Home Affairs (Migration)

GWFM and Minister for Home Affairs (Migration) [2019] AATA 3757 (24 September 2019)
Division:GENERAL DIVISION
File Number(s):2019/3963
Re:GWFM
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:24 September 2019
Place:Melbourne

The Tribunal decides to:
1.set aside the decision made by a delegate of the Respondent on 1 July 2019 to decline to revoke the decision dated 31 July 2018 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa; and
2.substitute a decision that the decision dated 31 July 2018 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

.............[sgd]...........................................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review set aside and substituted
LEGISLATION
Mental Health Act 2014 (Vic)
Migration Act 1958 (Cth)
CASES
DKXY v Minister for Home Affairs [2019] FCA 495
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
24 September 2019
INTRODUCTION

This matter relates to an application for review filed by GWFM (“the Applicant”) on 3 July 2019. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 1 July 2019 not to revoke the mandatory cancellation of his visa.
At the hearing before me, the Applicant appeared in person and was represented by
Mr Tom Battersby of counsel. The Respondent was represented by Mr Adam Cunynghame of Sparke Helmore Lawyers.
BACKGROUND
The Applicant is a 20-year-old citizen of New Zealand born in January 1999. His parents were born in Tonga.
The Applicant’s family moved to Australia in 2012 to find better opportunities for the future. The Applicant was aged 13 years at the time. He has not departed Australia since that arrival. Extended members of their family, including the Applicant’s uncle and his family, were already living in Australia.
The Applicant’s family, including his extended family, are very close. They are devout Mormons and enjoy a close relationship with their church and congregation. They also have a close relationship with the Bishop of their church. The Applicant and his family attended church regularly.
On 9 November 2012, the Applicant was granted a Class TY Subclass 444 Special Category (Temporary) visa. This is the visa that is the subject of this application.
When aged approximately 14 years, school friends introduced the Applicant to alcohol and cannabis. By 2016, he was smoking two grams of cannabis daily. He used methamphetamine on occasions. His family noticed a change in his demeanour; he isolated himself from his family, he would often sleep, and he was expelled from school in Year 9 for fighting.
The Applicant first came to the attention of the police in 2016. In August 2017, he appeared before the Melbourne Children’s Court charged with theft and assault with weapon, amongst other charges.
The Applicant’s personal history, including following his first arrest (also summarised by forensic psychiatrist Dr Zimmerman in her report dated 21 July 2017)[1] is in summary, as follows:
[1] Exhibit A, G Documents, G12, pages 95 – 105.
·Following his first arrest, the Applicant was assessed as unfit to be interviewed. In a psychiatric summary of Dr Driscoll dated 11 August 2016 and Youth Health And Rehabilitation Service clinical notes, it was noted that the Applicant was intoxicated with alcohol and, following his remand into the youth justice system, was assessed as psychotic. He was then commenced on oral antipsychotic and mood stabilising medication. Other mental state abnormalities included sexually disinhibited behaviour, talking to himself, responding to internal stimuli, hearing the television talking to him, and hearing his own thoughts spoken out aloud. He suffered grandiose delusions which included a belief that he was rich and was a rap writer, and reported voices telling him he was “cool, sexy and … hot.” In a psychiatric report of Dr Deacon dated 17 August 2017, he opined that the Applicant was unfit to stand trial because of his psychotic state.[2]
[2] Ibid, G5, pages 31 – 36.
·The Applicant was transferred to Orygen Inpatient Unit on a Secure Treatment Order dated 24 August 2016. He remained there as an inpatient for three weeks. He was floridly psychotic and exhibited marked thought disorder, grandiose delusions, and auditory hallucinations. He believed people were removing thoughts from his head. He heard voices from the television. He was elevated in mood, smiling and laughing inappropriately, and believed he was or would be famous. His family reported deterioration in his mental health over the last 18 months. There was difficulty assessing his mental health because of a reluctance to talk. He had minimal response to antipsychotic medication but a reasonable response to combined antipsychotics and mood stabilisers. He was to secure a course of electroconvulsive therapy (“ECT”).
·On 24 September 2016, the Applicant was discharged into the care of his parents and was managed as an involuntary patient. The Applicant became dismissive of the mental health service and his parents were having difficulties with him.
·On 2 December 2016, the Applicant committed the offence of sexual assault when he twice touched the buttocks of a young lady as she alighted from a bus.
·The Applicant turned 18 years of age in January 2017.
·By February 2017, the Applicant’s engagement with mental health services was only to the extent of monthly contact for his depot antipsychotic medication. Depot medication is administered by injection.
·
On 3 February 2017, the Applicant was assessed by a psychiatrist. He was noted to be floridly unwell and was admitted to the Werribee Inpatient Psychiatric Unit on 4 February 2017. In a report dated 6 February 2017, Dr Deacon opined he suffered from schizophrenia and misuse disorders involving alcohol, cannabis and methamphetamine. He was transferred to Orygen Youth Mental Health Unit on

7 February 2017 for a trial of ECT. His manic and psychotic symptoms appeared to improve.
·On 4 March 2017, he was discharged into the care of his family. He subsequently resided at his uncle’s home. On 12 March 2017, he committed the offence of armed robbery and was arrested three days later on 14 March 2017. He was unfit to be interviewed. His family decided they could no longer manage him and declined to allow their address to be used as a bail address. He was on an Involuntary Treatment Order at the time of his arrest.
·
On 16 March 2017, the Applicant went into the Melbourne Assessment Prison and was assessed as distracted, laughing incongruously, and appeared to be responding to unseen stimuli. Upon review by a psychiatrist on 23 March 2017, the Applicant was floridly psychotic with hallucinations, had a distracted affect, was giggling, and unable to meaningfully take part in an assessment because of his illness. There was concern that he was vulnerable to assault because of his psychotic behaviour. He was transferred to the Acute Assessment Unit on

28 March.
·The Applicant’s mental health conditions continued and on 9 June 2017 he was assessed as unfit to stand trial. He was to be further reviewed.
·
The Applicant subsequently pleaded guilty in the County Court of Victoria to the charge of armed robbery and was sentenced by His Honour Judge Taft on

13 September 2017 to 20 months detention in a Youth Justice Centre.
·The Applicant was at Malmsbury Youth Justice Precinct and from October 2017 he was under the care of a Youth Justice case manager Ms Grigorakis.
·Plans were in place for the Applicant’s release on Youth Parole on 16 July 2018, which included ongoing management of his mental health, referral to Prevention and Recovery Care (“PARC”) for ongoing support treatment and return to community living, enrolment in a Certificate 2 Automotive course, referral to Youth Support and Advocacy Service (“YSAS”) for ongoing counselling, and support and funding a gymnasium membership. By this time his mental health condition was in complete remission.
·On 7 June 2018, the Applicant was sentenced for the sexual assault committed in December 2017 as a juvenile. He was sentenced without conviction to a supervision order to 6 March 2019.
On 31 July 2018, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1986 (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis.
The Applicant was invited to make representations seeking revocation of the mandatory visa cancellation within 28 days and did so on 27 August 2018.
On 11 November 2018, the Applicant entered immigration detention at Melbourne Immigration Transit Accommodation (“MITA”) where he now remains pending the outcome of this application.
On 1 July 2019, a Ministerial delegate determined that the Minister was not satisfied that the Applicant passed the character test or that there was another reason why the Original Decision should be revoked. Accordingly, the delegate decided not to revoke the mandatory visa cancellation.
County Court Hearing – Armed Robbery
On 13 September 2017, the Applicant came before His Honour Judge Taft for sentencing for the offence of armed robbery. The offence was committed on 12 March 2017, two months after the Applicant’s 18^th birthday. At the time of the offending he was suffering from severe psychiatric illness. The learned sentencing judge sentenced the Applicant upon the following factual basis:
(i)Co-offender “M” aged 17 years and two other unknown co-offenders entered a bottle shop. They were disguised.
(ii)M produced a knife and jumped the counter. He brandished the knife at the attendant and demanded he open the till.
(iii)Shortly thereafter the Applicant entered the bottle shop with another unidentified male. They walked through the bottle shop taking various bottles of alcohol from fridges and shelves whilst the attendant continued to be threatened.
(iv)The other offenders took alcohol and $500 cash from till.
(v)On 14 March 2017, M and the Applicant were arrested by police. The Applicant was deemed unfit for interview.
The Applicant had no prior convictions but it was noted that on 21 August 2017 in the Children’s Court the Applicant was placed on probation for 12 months after pleading guilty to various thefts and other offences committed in 2015 and 2016.
The learned sentencing judge said that the Applicant fell to be sentenced as a young offender who was still only 18 years old and in circumstances which clearly enliven the Verdins principles. Those principles include the reduction in the moral culpability of the offending conduct, the consideration of the principles of general deterrence being moderated or eliminated as a sentencing consideration, the effect that a person’s mental capacity had upon him or her at the time of the offending or date of sentence and that because of an offender’s condition the effect of a sentence weighing more heavily on the offender including the risk of imprisonment having a significant adverse effect on the offender’s mental health. All these can be factors tending to mitigate the penalty that would otherwise be imposed.
The learned sentencing judge also had before him reports of forensic psychiatrist Dr Zimmerman dated 21 July 2017 and 11 August 2017. Dr Zimmerman diagnosed the Applicant as suffering from paranoid schizophrenia at the severe end of the spectrum. The learned sentencing judge then summarised the Applicant’s mental health history in similar terms to paragraph 12 above.
After referring to the provisions of the Sentencing Act 1991, His Honour said:
[42] Those statutory criteria appear to have been supplanted by management concerns. It needs hardly be said that one of the very purposes of youth justice order, is to divert young persons from a life of crime and that a number of young offenders have challenging mental health issues which, unless tackled and treated at this stage, threaten to escalate in the future.
[43] Dr Zimmerman has responded to the pre-sentence report. She states:
“As noted in my report dated 21 July 2017, [the Applicant] suffers from severe Paranoid Schizophrenic illness. I outlined my concerns about [the Applicant] in the custodial environment in that report. The lack of contact with his supports (the Tongan community, his family and his church) leave him isolated and at risk of deterioration in his mental state in the custodial setting. He has a history of being vulnerable to assaults and his unusual and disinhibited behaviour when unwell carries a risk of leading to misinterpretation and retribution by other prisoners.
There is no doubt, given [the Applicant’s] immaturity and vulnerability to assault, particularly when unwell, that he is at risk in the adult custodial setting. He would be best managed in a properly functioning Youth Justice System.”
The learned sentencing judge endorsed those observations of Dr Zimmerman. Both prosecution and defence counsel submitted in favour of a youth justice order. The Applicant was sentenced to 20 months detention in a Youth Justice Centre which took into account pre-sentence detention of 183 days.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Pursuant to 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of the Minister, may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.
The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. Consequently, I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One of more primary considerations may outweigh other primary considerations.

The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims; and
(e)       Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
The Evidence
The Applicant
The Tribunal received a statutory declaration signed by the Applicant and dated

16 August 2019[3] together with his oral evidence. The Applicant gave evidence, including about his offending, as follows:
·In relation to the offence of indecent assault on the bus in which he twice touched the buttock of a young lady, he said that he did not recall the offending. He was drunk and high. He became aware of it when his cousin showed him a Facebook communication the next day which said the Applicant was wanted for questioning in relation to the offence. He then spoke to his mother. He acknowledged the victim would have been scared, worried and feared for her safety.
·In relation to the offence of armed robbery, he said that he met some friends on the way home from the park. They asked him if he wanted to steal some liquor. He agreed to join them. He was the eldest in the group. He did not know that one of the co-offenders was armed with a knife and only became aware of that fact after he went inside the bottle shop. He heard the co-offender yelling at the attendant and saw the knife at the attendant’s throat. He took some alcohol and ran. He drank the alcohol with his friends that evening. That was the last time he drank alcohol. He expressed contrition and remorse for the offending. He acknowledged the inherent danger of the co-offender producing and using a knife.
·The Applicant had been before the Children’s Court in relation to an offence of assaulting a police officer. The Tribunal had very little information about the incident save that he pushed and spat at an officer. The Applicant said that he was at the park drinking and smoking with a group of friends, the police officer arrested him for no reason, and he pushed the officer.
[3] Exhibit C.
The Applicant said he was sick at the time of his offending. He would do things but not know or remember what he had done. He would drink and smoke cannabis. He would wake up the next day and wonder how he got home. He apologised to the Tribunal for his offending and showed some insight into the seriousness of his conduct and the impact it would have had on the victims, particularly the young lady on the bus and the bottle shop attendant. He said he will not reoffend.
The Applicant was asked about his illness, schizophrenia. He said he sees things and hears voices. When in the Youth Justice Centre he was seeing a psychiatrist regularly and was receiving medication including depot antipsychotic medication. However in migration detention at MITA he has had to ask to see a psychiatrist. He does not have regular psychiatric consultations. He said that the depot antipsychotic medication made him feel sick and when in MITA he ceased depot medication but has received and continues to receive oral antipsychotic medication.
The Applicant was asked about two incidents that occurred in MITA, namely:
·The first was an incident on or about 20 March 2019. The record indicates the Applicant approached an officer asking to collect his personal property and, when told it was not ready, became abusive and aggressive and grabbed hold of a pool cue and smashed it on the pool table. When the officer attempted to calm him down he repeated the action. The Applicant was remorseful and apologised to the officer.
In oral evidence, the Applicant said that his family had delivered some clothing to the detention centre five days earlier. He asked each day for the property and each day he was told it was not ready and he could have it the following day. On this occasion he was angry and reacted. The Applicant said he subsequently apologised to the officer involved, he repeated the apology in evidence.
·The second incident was on or about 30 July 2019. The record indicates that two detainees had a minor verbal altercation regarding the process for receiving medication. It was alleged two detainees attempted to strike at the Applicant. The Applicant blocked the blows and attempted a flying kick. Staff arrived at the scene and the parties were separated.
The Applicant in oral evidence said that he and his friend were confronted by another detainee who was much older. That detainee started to abuse them and push them. He and his friend did not instigate the altercation. He said that person confronted them the next day. On that occasion, they let him speak and then walked away.
Witnesses for the Applicant
Applicant’s mother NL
The Tribunal received a statutory declaration dated 4 December 2018[4] together with oral evidence. NL is a self-employed childcare worker who works from home.
[4] Exhibit A, G Documents, G21, pages 129 – 135.
NL said she and her family were surprised when the Applicant got into trouble. She tried to talk to him. She tried to follow him. She wanted him to know that the family was there for him. As a family they had never experienced this issue before.
The Applicant would come home and sleep. She never saw him. He kept going to the plaza with friends. He would talk back at her. He knew that smoking and drinking was not permitted in their house.
She said that she saw a change in the Applicant and that he was sick. This was before he turned 16 years of age. There was no history of mental illness in her family. When they found out he suffered from schizophrenia, she spoke to the doctor about treatment. She understands the importance of keeping him away from drugs, getting a job and continuing to take his medicine. She said that her husband can also work from home to provide support.
Dr Zimmerman
Dr Zimmerman is a forensic psychiatrist and has been a Fellow of the Royal Australian and New Zealand College of Psychiatry since 2002. From 2002 to 2014, Dr Zimmerman worked in a consultant capacity at Forensicare in acute and rehabilitation settings in prisons and in the Thomas Embling Hospital working with male and female patients. She has extensive expertise in dealing with prisoners with mental health issues.
The Tribunal received reports dated 21 July 2017,[5] 1 December 2018,[6] and 8 September 2019,[7] together with oral evidence. Her reports and evidence are relevant to both the seriousness of the offending, and in particular the role the Applicant’s mental illness played in each offence, together with the risk of reoffending.
[5] Ibid, G12, pages 95 – 105.
[6] Ibid, G11, pages 85 – 94.
[7] Exhibit F.
Report dated 21 July 2017
Dr Zimmerman detailed the Applicant’s medical condition as summarised in paragraph 12 above. When she interviewed him she noted marked poverty of speech wherein he initiated almost no conversation and gave short responses to questions often devoid of much content. He spoke softly and slowly. His expression of mood was blunted.
During periods of ill-health, Dr Zimmerman described the Applicant as follows:
When unwell, [the Applicant] has experienced auditory hallucinations, grandiose and paranoid delusions, delusions of reference, thought disorder and disinhibition. He has been treated with numerous antipsychotic, mood stabilisers and ECT but has been poorly engaged with treating services and has developed significant negative symptoms of schizophrenia including blunting of affect, poverty of speech and thought, apathy, anhedonia, reduced social drive, loss of motivation and inattention to social or cognitive input.
The Applicant was diagnosed with paranoid schizophrenia with affective (predominantly manic) symptoms. She stated that he met the criteria for cannabis misuse disorder and alcohol misuse disorder which, at the time of the interview, were in remission following incarceration. He then had poor insight into his problems. His mental illness was at the severe end of the spectrum noting he had already required numerous different antipsychotic and mood stabilising medications and had undergone a course of ECT. It was noted his mental health appeared to have improved in the well-supervised prison environment but that he remained at risk of deterioration should he become non-compliant with medication.
In reference to his offending, she noted that as at the time of interview by police he was hallucinating and was admitted to Melbourne Assessment Prison for assessment. However, there was no direct link between the Applicant’s positive symptoms such as voices and delusions and the offending. She noted, however, that “cognitive defects in judgement, impulse control and executive function (such as thinking and making strategic decisions) associated with his major psychotic illness are likely to have been associated with his decision to participate in the offending.”
Dr Zimmerman opined
that a custodial sentence would weigh more heavily on (the Applicant) than on someone without his illness. The lack of contact with his supports (the Tongan community, his family and his church) leave him isolated and at risk of deterioration in his mental state in the custodial setting. He has a history of being vulnerable to assaults and his unusual and disinhibited behaviour when unwell leading to misinterpretation and retribution by other prisoners.
Dr Zimmerman noted the Applicant was on a combination of depot and oral antipsychotic medication as well as mood stabiliser drugs which she said was an ideal combination in the future given the improvement in his mental health over the last months, but compliance with oral medication will be more difficult in a less supervised environment. She referred to High Risk Offenders Drug and Alcohol Service (“HROADS”) as an organisation aimed at individuals such as the Applicant who pose a high risk of recidivism and relapse into substance abuse.
Report dated 1 December 2018
Dr Zimmerman again confirmed the diagnosis of paranoid schizophrenia with affective (predominantly manic) symptoms at the severe end of the spectrum. He met the criteria of cannabis misuse disorder and alcohol misuse disorder which are currently in remission.
In respect of his current mental state and treatment, his symptoms of delusions, hallucinations, passivity phenomena, and thought disorder appeared to be well-controlled on his medication. There was no evidence of mania. There were, however, some symptoms of blunting, apathy, anhedonia (reduced ability to experience pleasure), diminished social interactions, and alogia or reduced speech. Some of these features, however, will be aggravated by the heavy sedation from the medication he was receiving. His current medications were efficacious in managing his positive psychotic symptoms and his mania. His mental state was vastly improved from the time of his offending.
It is apparent that at the time he was remanded into custody, the Applicant’s mental illness was untreated. Dr Zimmerman said “Having been re-established on medication and in the absence of drugs, all positive symptoms of mood disturbance is abated. Ms Grigorakis notes that there were no positive symptoms or mood disturbance since his transfer to Malmsbury from the adult prison.”
Dr Zimmerman opined that medication was central to the effective management of the Applicant’s schizophrenia. It was advisable to look at altering his medications because functioning may be impaired due to over-sedation. It is important that the Applicant remain linked with strong community supports “both professional and nonprofessional to monitor his mental state and compliance, assist him in getting to appointments as needed and to provide a positive structure for his daily life”.
The Applicant had been compliant with his medication when at Malmsbury and actively requested specialist follow-up once he is returned to the community. He had been referred to Mercy Health for management of his mental illness and follow-up from the Wyndham Clinic. The Applicant was referred to Prevention and Recovery Care (“PARC”) residential service aimed to assist with transition back to community life which was an ideal setting for the Applicant to ensure he remains on medication.
Dr Zimmerman also referred to other treatment plan arrangements put in place through the assistance of Ms Grigorakis, including an automotive course at Kangan TAFE, which she described as an ideal opportunity, funding for gym membership, a coordinated plan for mental health support, drug and alcohol counselling, vocational training, and supports to pro-social community organisations and networks. Dr Zimmerman strongly supported this as a package to maximise the chances of successful transition back to the community.
Dr Zimmerman also opined that a lack of contact with his non-professional supports such as the Tongan community, his family and his church would leave him isolated and at risk of deterioration in his mental health state. The strength of the treatment plan referred to in paragraph 57 “combines crucial interventions that can be provided by psychiatrist, case managers and counsellors with the bonds, connections and opportunities that provide [the Applicant] a pathway to remaining mentally well in the long term.”
Report dated 8 September 2019
Dr Zimmerman assessed the Applicant on 3 September 2019. On that occasion, his speech was slow, slurred and soft, but his presentation had improved compared with her previous assessment on 23 November 2018. Further, there was no evidence of formal thought disorder, bizarre, persecutory or grandiose delusions and no delusions of control, passivity phenomena, or sense of others interfering with his thoughts or movements. He was focused on his plans that will enable him to successfully live in Australia with his family and the community. He was however over sedated and had difficulty remaining alert. Dr Zimmerman noted the Applicant could not recall seeing a psychiatrist since the end of 2018. He sees a doctor upon request. He reported not being reviewed by any psychologist or psychiatric nurse and that his medication is handed out by staff at the medication room. There were no counselling groups or drug and alcohol groups’ to attend in MITA.
The Applicant told Dr Zimmerman about the incident involving the pool cue and the fight with a co-detainee. The explanation for his anger was consistent with the evidence he gave to the Tribunal, namely that over a number of days he had been asking for his property and repeatedly told he would have to wait. He said that he is now in another area of the MITA compound and is much happier. As for the fight, he similarly described himself and a mate being picked on by a co-detainee who was unwell and angry.
Dr Zimmerman opined that the Applicant’s symptoms of hallucinations, delusions, disinhibited behaviour, and thought disorder are in complete remission. He continues to experience some negative symptoms of expression (flat affect), gestures, apparent lack of interest in the world, lack of motivation, and poverty of speech. A confounding factor she said was the Applicant’s persistent sedation which can mimic these symptoms. She described his sustained remission being in stark contrast to his mental state at the time of offending when he was floridly psychotic, hallucinating, receiving messages from a television and thought thoughts were being placed into and removed from his head. His psychosis now remains in remission. He reported greater motivation taking part in a range of daily activities that were available to him.
Dr Zimmerman said medication remains the key to the effective management of the Applicant’s schizophrenia and that the combination of antipsychotic medication mood stabiliser medication is ideal. However, in her opinion, depot medication to ensure compliance with his medication regime is advisable.
In evidence, Dr Zimmerman said that with the benefit of hindsight, the Applicant’s release into the care of his family on 4 March 2017 was premature; he should have remained in care but these decisions are often very difficult.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

Paragraph 13.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant
In relation to his future, the Applicant said that if his visa cancellation is revoked, he intends to study. He spoke with a friend in MITA who suggested plumbing. He also was interested in being a mechanic and he did courses when in juvenile detention and planned to pursue a course in either mechanics or plumbing when on parole.
If he returns to the community he would like to renew his plans to study plumbing or mechanics. He was also willing to consider working in the plastering trade with his relative, IF, to whom the Tribunal will refer to later in these reasons. He likes music, particularly rap music. He is looking forward to returning home to live with his parents and younger siblings.
The Applicant said he was close to his religion, his church and the religious community. He said that his church was near his home and that he knows the Bishop whom he regards as a friend and a role model. He also said his father was his role model and he is still there for him. His father teaches and shows him things. He said he now realises that his father and mother were the only ones that were there for him.
The Applicant’s Mother NL
NL and her family visited the Applicant regularly when in the Youth Justice Centre. However, they have had difficulty making appointments and visiting him in MITA. Nonetheless, they telephone him every day. The Bishop has been to see him and supports their family and the Applicant. They have family prayers each Tuesday and they telephone the Applicant so that he can be part of those prayers.
NL said that in custody she has noticed a marked change in the Applicant. He now talks, speaks out, and thinks about what happened.
If the visa cancellation is revoked the Applicant can return to live with her, her husband and the Applicant’s four siblings who remain at the family home. They have no family in New Zealand. Her immediate and extended family now live in Australia.
In cross-examination, NL understood that the Applicant will need to receive medication as prescribed by a doctor. Beyond medication, she said the additional help needed was to get the Applicant a job, engage in meaningful activities, take him to see the doctor, and maintain his medication regime. It is her intention that if his visa is reinstated they will “immediately connect” with the family doctor so he is aware of everything and to see what she and the family can do to help and support the Applicant.
She described the Applicant when sick as being very different. He was not normal and would not listen. He was not at the house and would sleep at another’s house. When he was sick he would always ask for money. Should those signs re-occur she will immediately contact the doctor. However, overall she had limited insight in or understanding of his mental illness.
Relative - Mr IF
The Tribunal received a statutory declaration dated 3 November 2018[8] together with oral evidence. The Applicant’s mother is IF’s first cousin. His extended family now lives in Australia and they do not have any close relatives in Tonga and no family left in New Zealand. The Applicant’s family and his family are very close.
[8] Exhibit A, G Documents, G22, pages 136 – 138.
IF is aware of the Applicant’s offending in that he was getting into fights. IF said when he was young he too did the wrong thing and he offers his help to the Applicant and his family.
IF is a self-employed plasterer. If the Applicant’s visa is restored, he offers the Applicant full-time work, five days a week, as a labourer cleaning premises, tools, and as an apprentice plasterer if he wished. He will be paid a starting salary of $20 an hour.
IF said that he would be at work with the Applicant each day. If the Applicant had to attend medical appointments, his wife who is at home would take him to those appointments and then to work.
In cross-examination, IF said that he was aware the Applicant had been dealing with negative people and had some understanding of the fact of the offence of armed robbery but did not know this true story. He was aware it occurred at a shopping centre. However, he was not sure about the Applicant’s mental health condition but he was prepared to take him to appointments either personally or through his wife, assist in the taking of medication, and support of the Applicant generally. His understanding of his health condition was to the extent of the information given to him by the Applicants parents.
He did not have a clear understanding of the Applicant’s mental health condition, schizophrenia.
Uncle KT
The Tribunal received an unsigned statutory declaration[9] together with oral evidence by telephone.
[9] Exhibit D.
KT is the Applicant’s uncle and the brother of the Applicant’s mother. He and his family live in Australia. They have no family in New Zealand or Tonga. He makes and sells Polynesian carvings.
The Applicant and his family lived with KT when they first moved to Australia. When the Applicant was having trouble with the police and taking drugs and was unwell, at KT’s invitation, the Applicant came to live with he and his family. On two occasions when the Applicant was living with KT police came and took him away. On each occasion, even though the Applicant was sick, he understood the need to go with police and did so without incident. KT has continued to visit the Applicant whilst in custody.
KT referred to the occasion in March 2017 when the Applicant was released into the care of his parents. The Applicant immediately left the home. His parents tried to stop him. Two days later, the Applicant returned home. KT opened his door to the Applicant and he resided with KT until police arrested him for the armed robbery offence. He described the Applicant as being sick and looking different. He was half asleep and eating food that poor people eat.
KT said that the Applicant got into trouble at school, being involved with students who drank alcohol and smoked cannabis. No one in their family or their extended family smokes or drinks alcohol. The Applicant was hanging around with those who were a bad influence. Before that occurred, he described the Applicant as “100%.”
KT said that the Applicant will remain on medication for the rest of his life and he understands that he must maintain that medication if he wants to continue to see his family. He said that whatever the doctors say needs to be done, KT and his family will support the Applicant to make sure he is compliant.
He said that their church community will be there to support the Applicant and try and hold him to that community. If the Applicant’s visa is restored, he offers to teach him Polynesian carving and support him to become a decent member of the community.
Ms Grigorakis
Ms Grigorakis is a Youth Justice case manager who worked with the Applicant whilst he was in the Youth Justice Centre. Her role is to undertake statutory supervision and case management of young people with complex needs and challenging behaviours. That role includes increasing young people’s opportunities of enhanced quality of life and community inclusion.
Ms Grigorakis wrote a letter dated 29 October 2018[10] in support of the Applicant and gave oral evidence at the hearing.
[10] Exhibit A, G Documents, G14, pages 111 – 112.
She said the Applicant was closely monitored by Mental Health Services at Malmsbury and was seen on multiple occasions by psychiatric nurses and consultant psychiatrists. He was compliant with his medication and did not display any signs of psychosis or mood disorder. He had injections of antipsychotic medication three monthly.
Ms Grigorakis wrote that Youth Justice had been planning for the Applicant’s release on parole with a number of supports in place which, because his visa was cancelled, could not be actioned but could be renegotiated. Those services include:
·referral to Mercy Health to assist in management of the Applicant’s mental health. He had a planned first appointment on 30 July 2018;
·referral to Prevention and Recovery Care (“PARC”) a residential service providing short-term recovery support and treatment for people receiving mental health care. PARC provides a program of support to prevent worsening of illness and the need for hospitalisation if required. It supports and assists patients in the returned community living;
·Jesuits Employment Training Transition Service attendance at Kanga Institute to pursue a Certificate 2 automotive course commencing 16 July 2018;
·referral to Youth Support and Advocacy Service (“YSAS”) for intervention regarding substance use and planned ongoing counselling upon release. The Applicant participated in an assessment with YSAS earlier in 2018;
·Youth Justice support and funding a gymnasium membership upon release.
In evidence, Ms Grigorakis said that the Applicant would have been placed on parole two thirds of the way into his sentence. She was in contact with the Applicant each fortnight. His release date was to have been 16 July 2018. She described his progress as initially slow with monosyllable communication and not a lot of discussion. However, subsequently he would telephone Ms Grigorakis and became more communicative and interested in planning for the future. There was a noticeable change in him over time and they developed rapport and trust.
She said he stabilised once he was given his medical regime which was performed regularly by staff. He never behaved in a way that was threatening.
Ms Grigorakis came to know his family and her general impression was that the family was very supportive of him.
Ms Grigorakis saw the Applicant give evidence before the Tribunal. She noted a marked improvement in his presentation which was very different from the withdrawn person that she had previously known. When under her supervision, he did not seek out drugs and on release there was a plan in place for continued drug and alcohol counselling. As for as his prior history, it was evident that the Applicant’s offending was when he was unwell and un-treated.
Youth Justice’s primary concern was and remains rehabilitation. The program for the Applicant upon release was in place and the Applicant was to commence those support programs as a priority. The cancellation of his visa interrupted the process and he has lost that priority because now he would need to engage with the program as a voluntary patient rather than a forensic patient. There is no guarantee he would be engaged in those support programs. However, Ms Grigorakis believed that the programs would remain available and she will continue to provide support and take all steps to ensure he can engage in each of those support programs previously available to him. She said the parole arrangements are not lost.
Ms Grigorakis confirmed the Applicant has strong family supports. His mother has her telephone number and she is available at any time to assist. The pastor from Malmsbury can continue to make ongoing contact. She described the Applicant as now far more insightful in respect of his mental health and its relationship to drugs and alcohol.
Dr Zimmerman
In evidence, Dr Zimmerman said that there was no difference between depot medication and oral medication. The former is an injection which ensures compliance and she recommended the Applicant should remain on depot medication for a minimum of two years. She expressed concern that depot medication had ceased. If the depot medication was making him feel unwell, there was a wide range of alternate depot medications which could and should have been tried. Nonetheless, depot medication remains preferable because the clinician will know what is going on and that the patient is actually receiving his medication. If, for any reason, he were to cease oral medication, the clinician will not know until there is a relapse. She stated that the only way to be 100% sure is to have depot medication. In her report, dated 8 September 2019 she opined in respect of depot medication “that non-compliance can be avoided rather than detected after the fact - a preferable outcome for [the Applicant].
Dr Zimmerman expressed concern that in MITA the Applicant was not being reviewed by a psychiatrist on a regular basis. This is particularly important whilst changes are implemented with respect to his medication in order to maximise the balance between effectiveness and side effects. She said it was heartening to see the Applicant had nonetheless maintained his oral medication. This demonstrated his insight into his condition and the need for him to be compliant with medication regimes. Nonetheless, she would still recommend he remain on depot medication for two years and then reconsider any alternative.
In her report dated 8 September 2019, Dr Zimmerman said
Alongside medication, it remains important that [the Applicant] remains linked into strong community supports- both professional and nonprofessional - to monitor his mental state and compliance, assist him in getting to appointments as needed and provide a positive structure for his daily life. [The Applicant’s] understanding of his illness and particularly its link to smoking cannabis was heartening. Ongoing psychoeducation for him and his family will form part of best-practice management of his schizophrenia. Given problems with follow-up in the past, I strongly recommend that he remain an involuntary patient under the Mental Health Act in the community and that he remains a patient of an area mental health service at all times, rather than being discharged to the care of a GP.
In her report dated 8 September 2019, Dr Zimmerman was asked to address the likelihood and risk of the Applicant reoffending. In making that assessment she used a tool HCR-20 v3 which is a structured professional judgement instrument to formulate risk based on clinical assessment. That tool considers risks under five headings as follows;
·History of violence - The Applicant did not have a history of violence in his first developmental stage, namely when he was under 12 years of age. His history of violence commenced in his mid-teens. The onset of violence coincided with the onset of his schizophrenia. Since his illness was in remission, there was a marked reduction in violence, albeit Dr Zimmerman noted the two incidents in MITA. The Applicant qualifies for a “clear pattern of violence” under the assessment tool, having been involved in a minimum of three distinct occasions of committing violence.
·Examples of antisocial acts, namely violations of social norms that do not involve violence – These, Dr Zimmerman noted, included the Applicant’s history of sexually disinhibited behaviours including in front of a clinician. This occurred when the Applicant was acutely psychotic. There was no evidence of early-onset acts that qualify as oppositional or antisocial behaviour.
·History of problems with substance misuse - This was evident from alcohol and cannabis use from his mid-teens.
·The presence of major mental disorder – schizophrenia - as detailed above.
·History of problems in the area of treatment supervision - In this regard, it was noted that he failed to engage initially with treatment supervision whereupon he was placed on depot medication.
Dr Zimmerman opined that the Applicant had an awareness of his history of schizophrenia and the need for treatment. He was compliant with oral medication and indicated a willingness to undergo treatment by mental health professionals in the community upon release. He accepted that he had significant problems with abuse of alcohol and cannabis which demonstrated his understanding of the link between his substance abuse and his mental illness. He did not demonstrate problems with insight and there was no evidence of current or recent problems with violent ideation or pre-occupational fantasies. There was no evidence of symptoms of psychosis or mood disorder. There was also no sign of his prior sexual disinhibited behaviour, which was a feature of his illness and gave explanation for the offence of indecent assault of the young lady on the bus. There was possible evidence of persistent negative symptoms such as blunting effect, poverty of speech and thought, and apathy as referred to above, however these were equally consistent with the sedative medication he was taking.
Dr Zimmerman opined that there was no
evidence of recurrent, serious problems maintaining stable adjustment with effective, behavioural or cognitive functioning. [The Applicant] self-reported one incident of loss of temper in the face of repeatedly frustrated attempts to gain access to property from his mother and one incident of becoming involved in a fight. There is no evidence before me that would suggest that [the Applicant] has recent problems with treatment/supervision - he appears to be continuing to take prescribed medication that is keeping his illness in remission.
In considering the Applicant’s future needs, it was noted he had cooperated with mental health services in detention. When in youth detention, he actively sought follow-up by mental health specialists. He has realistic and appropriate aims with regard to future treatment, and was realistic and appropriate in his recognition of the need to find work. It was noted that he had future plans in terms of living with his parents or uncle which were appropriate. His parents are available, as they have been in the past, to assist when he is unwell. The Applicant also has supports beyond his immediate family including the Tongan community, his church, and the Jesuits Employment Training Transition Service who have indicated a role in taking the Applicant to TAFE for study.
There are no current issues of non-compliance, homelessness, lack of motivation, or interpersonal impediments to the accessing of treatment.
Dr Zimmerman noted the Applicant was motivated and keen to pursue future options available to him and that he currently poses a low risk of serious or imminent violence to members of the broader Australian community. Provided that he remain linked with an Area Mental Health Service, ideally as an involuntary patient under the Mental Health Act 2014 and remain on depot medication, the risk of relapse will be low.
Dr Zimmerman opined that were the Applicant to be removed to New Zealand absent of family support, he will be at risk of deterioration in respect of his mental health. He will not have readily available accommodation and the companionship in support of his family and extended family members. She said “Schizophrenic relapses are strongly associated with stressful life events and the possibility of a relapse will be significantly elevated should he be removed to a country that he feels disconnected from.”
Dr Zimmerman said the Applicant indicated he knows of the need to continue to seek psychiatric assistance and take medication to stay well, and understands the relationship with drugs and not feeling well. He knows to stay off drugs, not renew old friendships, and that obtaining employment is a priority.
Dr Zimmerman was asked in cross-examination about the supports available in the community and that his family members appear to have a limited understanding of his mental health condition. Dr Zimmerman said that families are not often aware of the signs of and how to deal with mental illness, however a clinician will work with the family when he is released and with mental health services and the family will be educated about his illness because it is helpful for the family to have a level of awareness of the condition, it signs and appropriate treatment.
Conclusion: Primary Consideration A

The Respondent in submissions drew the Tribunal’s attention to nature and seriousness of the Applicant’s offending. But further, in respect of risk (a) the nature of harm to the community and (b) the likelihood of further criminal conduct, the Respondent rightly submitted that the current attempt at rehabilitation has been in a controlled environment and where, on occasion, he has demonstrated aggressive behaviour. The Applicant has reoffended when he has been non-compliant with a Treatment Order.
The Respondent submitted the offending was serious, violent and sexual, and relied on the contents of the Statement of Facts Issues and Contentions to which the Tribunal has had regard.
Further, that despite the Applicant’s expressed intention of future compliance with a Voluntary Treatment Order, the Tribunal should have regard to the Applicant’s prior history and also the fact that his family have limited understanding of his mental health condition. The Respondent submitted that although there is no doubt that the family is close and may be there to assist, they have no understanding of the medication regime or the trigger signs of his illness. The Respondent submitted that the Tribunal find this should not weigh in favour of the Applicant.
The Tribunal accepts that the Applicant demonstrated a disregard for police when he assaulted an officer by pushing him. This offence, committed when he was a youth, was committed against a government representative or official due to the position held in the performance of that offers duties as per paragraph 13.1.1(c) of the Direction. His offence against a young woman on the bus falls within the category of offences referred to in paragraph 13.1.1(1)(a) and (b) of the Direction and is very serious. The offence of violence, namely armed robbery of a bottle shop, was committed against a vulnerable member of the community. In sentencing, the bottle shop attendant was properly described as a soft target.
The Applicant’s counsel submitted that the offending occurred between April 2016 and March 2017. In the case of the latter offence, the Applicant was 18 years and 2 months old.
However, the initial offending involving a police officer occurred in circumstances where the Applicant was suffering from undiagnosed serious mental illness. In respect of the offences of indecent assault committed as a youth and armed robbery, he was not engaging with mental health services and was demonstrating, amongst other things, a serious florid psychotic illness.
When arrested on 14 March 2017, the Applicant was unfit to be interviewed and was plainly a very sick young man.
The Tribunal accepts he was seriously mentally unwell at all times when he committed those offences between 2016 and 2017. The fact of his serious mental illness is relevant in considering both the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should he engage in further offences or in other serious conduct.
When sentenced, the learned sentencing judge said that the Applicant’s circumstances “clearly enlivened a number of Verdins considerations” and the priority of sentencing was clearly to divert the Applicant from a life of crime and address his challenging mental health issues into the future. It is unfortunate that extensive supports that were in place and about to be engaged with the Applicant’s release on parole were interrupted by his visa cancellation. Nonetheless, the Tribunal accepts that it is likely that those supports, including studies at TAFE, are not lost and that those responsible for the Applicant’s future care will give their best endeavours to ensure that they are re-enlivened.
Having regard to the Applicant’s serious mental health issues that were undiagnosed and not medicated or adequately medicated at the time of the offending, his culpability and the seriousness of the offending do not in the circumstances of this Applicant weigh as heavily against cancellation of his visa as might otherwise have been the case.
The reports of Dr Zimmerman and her evidence were extremely helpful and provide insight into the circumstances in which the offending occurred and also the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Tribunal accepts the evidence of Dr Zimmerman including her assessment that the Applicant “currently poses a low risk of serious or imminent violence to members of the broader Australian community”. That opinion is plainly dependent on the Applicant’s continued abstinence from alcohol and drug consumption and his continued and uninterrupted adherence to his medication and other support services.
The Tribunal accepts Dr Zimmerman’s opinion that the Applicant has demonstrated insight into his mental health illness and its relationship to drug and alcohol abuse. The Tribunal accepts that the Applicant is motivated to be compliant with medication and to remain drug and alcohol free. The Tribunal also accepts that the Applicant is prepared to remain linked with an area Mental Health Service as an involuntary patient under the Mental Health Act 2014 and will obey their lawful directions. I note that Dr Zimmerman opined that receiving depot medication will result in the risk of relapse being low.
The Tribunal accepts that the Applicant enjoys the support of his immediate and extended family, his church and its congregation, the Bishop of his church, and Ms Grigorakis, all of whom are dedicated to ensuring that the Applicant will continue with the required medical treatment, and engage in those programs including at TAFE which will be available to him.
The Tribunal also accepts, however, that in circumstances involving drug and alcohol abuse and serious mental health conditions, some risk of reoffending will continue and should not be ignored. This matter is yet another example of the devastating consequence drug and alcohol abuse has on our youth, their families, and the Australian community.
However, in the circumstances of this matter, the Tribunal accepts that the likelihood of the Applicant engaging in further criminal or other serious conduct is low.
Accordingly, the Tribunal finds that Primary Consideration A weighs slightly in favour of the Respondent.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the con-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has four minor siblings; three brothers: STL aged 16 years, SL aged 14 years, and SL2 aged 10 years, and one sister FETL aged 9 years.
The Tribunal has considered the best interests of each child separately and finds that their interests are the same. They each enjoy a close and loving relationship with the Applicant. The Tribunal accepts NL’s evidence that when they have been taken to see the Applicant in custody he has interacted and played with each of them, including playing games together on an iPhone. They have each been upset to see the Applicant in a custodial setting. Each love him and would be devastated should his visa remain revoked and he be returned to New Zealand.
NL has not told the younger children of the potential for the Applicant to be returned to New Zealand because of the potential impact that news will have upon them. She has only told the Applicant’s eldest sister, MML, who is now aged 19 years about the visa cancellation.
The Applicant is not otherwise responsible for the care and upbringing of these minor children.
The Applicant has also identified two minor cousins. There is no evidence before the Tribunal that the Applicant plays any role in the care and upbringing of those cousins. The only relevant evidence is that the extended family is very close.
Conclusion: Primary Consideration B
The Tribunal accepts that the Applicant has a close and loving relationship with his four minor siblings. These relationships have been interrupted by the consequences of drug and alcohol abuse, and incarceration in the Youth Justice Centre, Malmsbury and MITA.
For a period of time, particularly following the onset of the Applicant’s serious mental health issues, the Tribunal infers that the relationship with those minor siblings would have been affected to their detriment. However, given the Applicant’s mental health illness is in remission and that they now have returned to a close and loving relationship, and further, having regard to the evidence of Dr Zimmerman, which the Tribunal accepts, that the Applicant is a low risk of returning to drug abuse, the Tribunal accepts that the close and loving relationship will continue with respect to each child for the balance of his or her minority.
Accordingly, the Tribunal finds that in respect of the four minor siblings, Primary Consideration B weighs moderately in favour of the Applicant.
As to the Applicant’s two minor cousins, there is insufficient evidence before the Tribunal from which the Tribunal can make a decision with respect to Primary Consideration B. Accordingly, the Tribunal attributes no weight in respect of those minor children.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Further, paragraph 6.3(5) of the Direction provides:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
The evidence in relation to this Primary Consideration is referred to above and need not be repeated. The Applicant’s offending in and of itself is a breach of the trust which might otherwise properly result in non-revocation of the Applicant’s visa.
The Respondent submits that although this factor will not always weigh against revocation the Tribunal must give effect to the “norm” stipulated in paragraph 13.3 which will of its nature weigh in favour of refusal in most cases. The Respondent referred the Tribunal to the decision DKXY v Minister for Home Affairs [2019] FCA 495.
The Applicant has not participated in, or contributed to, the Australian community, and indeed his offending commenced within a relatively short time following his arrival in Australia. Accordingly, it is submitted that Australia would have a low tolerance of the serious criminal conduct by the Applicant.
The Applicant submits that there is no evidence before the Tribunal about whether drugs precipitated his psychiatric illness. Nonetheless, the Australian community would extend a level of understanding to the Applicant given the circumstances of his offending. It is submitted that the Act be administered in a fair and humane way, particularly having regard to the Applicant’s youth health ties to Australia and the consequences that will follow should his visa remain cancelled.
The Applicant submits that the Australian community would be fair-minded, have substantial regard to the sustained remission of his illness, and would give him the opportunity to remain in Australia. The Applicant points to his community and church group as part of that Australian community.
Conclusion: Primary Consideration C
In circumstances where a breach of trust has occurred against a background of undiagnosed, untreated or non-medicated serious mental health commencing as a youth of approximately 16 years and up to the age of 18 years and two months, the expectations of the Australian community are very different to those expectations of a non-citizen who has committed like offences whilst enjoying good mental health.
In the circumstances of this matter, the Australian community would demonstrate a higher tolerance in respect of the Applicant than might otherwise have been the case.
The Applicant has significant support from those rehabilitation services that are available to him should he be released into the community. Further, he has the support of his family, his church and its congregation, his Bishop, and Ms Grigorakis such that the Australian community would not expect, in the circumstances of this matter, that the Applicant should not hold a visa.
In the circumstances of this matter, Primary Consideration C weighs heavily in favour of the Applicant.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
No evidence or argument was advanced in relation to non-refoulement obligations such that it is of relevance in determining the application.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
(i)Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
Again, the Applicant’s history is detailed above, and the Tribunal will not repeat it at length. He arrived in Australia in 2012 as a child aged 13 years and within approximately 12 months he began to use alcohol and cannabis. His family noticed a change in him which deteriorated over time. He began getting into fights at school and was expelled when he was in Year 9.
The Applicant has spent no time positively contributing to the community. He commenced offending aged 15 – 16 years, culminating with the offence of armed robbery when he was aged 18 years. He was sentenced for the offence of armed robbery and sentenced to a period of detention in a Youth Justice Centre at Malmsbury and subsequently at MITA. Throughout much of this time he has suffered from severe psychiatric illness.
However, the Applicant has strong ties to his immediate and extended family all of whom reside in Australia. He enjoys similar ties with other members of the Australian community, in particular his church and its community.
The Applicant has no family or community ties outside of Australia, and in particular in New Zealand. His immediate and extended family all reside in Australia.
The Respondent submits that the Applicant’s illness is not relevant to this Other Consideration. The Tribunal agrees with that submission.
Conclusion: Other Consideration 2
The Applicant’s sole ties lie with family, extended family and the church community in Australia. He has no ties outside of Australia. His entire extended family have all moved to and settled in Australia and are Australian citizens or permanent residents.
Having regard to the Applicants sole ties being to his immediate family, extended family and church community, this Other Consideration weighs heavily in favour of the Applicant.
Other Consideration 3: Impact on Australian business interests
No evidence or argument was advanced in relation to the impact on Australian business interests such that it is of relevance in determining the application.
Other Consideration 4: Impact on victims
No evidence was advanced that the revocation of the Original Decision would have a negative impact on members of the Australian community or any victims of the Applicant’s criminal behaviour such that it is of any relevance in determining the application.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant is now aged 20 years. He has limited education having been expelled from school in Year 9. There are no substantial language or cultural barriers should the Applicant be returned to New Zealand. However, he has never been employed and has no employable skills. He has an opportunity to undertake a TAFE course in mechanics, work in the plastering industry, or work with his uncle as detailed above.

The Applicant suffered severe psychiatric illness that was debilitating and seriously affected his ability to function within the community. That illness is in remission very much because of the extensive medical services and supports available to him. He has developed insight into the relationship between his drug and alcohol abuse and demonstrated motivation to remain drug and alcohol free and compliant with recommended medical treatment.
There is no evidence about the nature and extent of the immediate medical services and supports available in New Zealand. The Tribunal accepts that they will likely be comparable to those the Applicant has enjoyed in Australia but the Tribunal has no evidence about the process that must be followed to make them available to him.
The Tribunal has referred above to the evidence of Dr Zimmerman and the importance that the Applicant remain linked to the strong community supports, both professional and non-professional, to monitor his mental health and compliance, assist him in getting to appointments as needed and provide a positive structure for his daily life.
Conclusion: Other Consideration 5
The Applicant has limited education. He is still a very young man and has suffered a debilitating illness. The Tribunal accepts the evidence of Dr Zimmerman that important in the Applicant’s continued recovery are those medical and support services, and that it is now proposed he engage in relation to the future treatment and management of his illness, together with the strong supports of his immediate and extended family his church and its community. The Tribunal accepts Dr Zimmerman’s opinion that
Lack of contact with [the Applicants] nonprofessional supports (the Tongan community, his family and his church) would leave him isolated and at risk of deterioration in his mental state. The risk of association with criminal peers/associates will increase if he is in a setting where he does not have family and community supports. In such a situation he is less likely to remain compliant with treatment plans. The strength of the treatment plan….. Is that it combines crucial interventions that can be provided by psychiatrists, case managers and counsellors with the bonds, connections and opportunities that provide [’s the Applicant]’s a pathway to remaining mentally well in the long-term.
Although some of those “crucial interventions” such as psychiatrists, case managers and counsellors may be available in New Zealand, it is the combination of all of those supports which will not be available to the Applicant should he return to New Zealand, and which will result in an increased risk that his mental health will seriously deteriorate.
Accordingly, Other Consideration 5 weighs heavily in favour of the Applicant.
There are no more Other Considerations that the Tribunal should have regard to on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the character test as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs slightly in favour of the Respondent;
(b)Primary Consideration B weighs moderately in favour of the Applicant;
(c)Primary Consideration C weighs heavily in favour of the Applicant; and
(d)The combined weight of the Other Considerations adds weight in favour of the Applicant and, when considered in conjunction with Primary Considerations B and C, they outweigh the weight attributed to Primary Consideration A.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal exercises the discretion to revoke the mandatory cancellation of the Applicant’s visa pursuant to s501CA(4) of the Act
DECISION
For the reasons outlined above, the Tribunal decides to:
·set aside the decision made by a delegate of the Respondent on 1 July 2019 to decline to revoke the decision dated 31 July 2018 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa; and
·
substitute a decision that the decision dated 31 July 2018 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa be revoked under

s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 172 (one hundred and seventy -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.........[sgd]...............................................................
Associate
Dated: 24 September 2019

Dates of hearing: 12 - 13 September 2019

Counsel for the Applicant: Mr Tom Battersby

Advocate for the Applicant: Mr Rohan Thwaites

Solicitors for the Applicant: Refugee Legal

Advocate for the Respondent: Mr Adam Cunynghame

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 3757

24 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Dates of hearing:	12 - 13 September 2019
Counsel for the Applicant:	Mr Tom Battersby
Advocate for the Applicant:	Mr Rohan Thwaites
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers