Jasick and Minister for Immigration, Citizenship and Migrant Services (Migration)

[2022] AATA 3684

Jasick and Minister for Immigration, Citizenship and Migrant Services (Migration) [2022] AATA 3684 (3 November 2022)

Division:GENERAL DIVISION

File Number:          2022/6529

Re:William John Jasick

APPLICANT

AndMinister for Immigration, Citizenship and Migrant Services

RESPONDENT

Decision

Tribunal:Deputy President Denis Dragovic

Date:  3 November 2022

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the delegate of the Respondent dated 11 August 2022 to not revoke the cancellation of the Applicant’s visa.

……………[SGD]…………………………..

Deputy President Denis Dragovic

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class 155 Five Year Resident Return Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 - decision under review set aside and substituted – dangerous operation of a vehicle (causing death) – seventy-one-year-old applicant from the United States with schizophrenia

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

CASES

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174

SECONDARY MATERIALS

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Deputy President Denis Dragovic

3 November 2022

Introduction and background

1. The Applicant is a 71-year-old male citizen of the United States of America. He was born in 1951 in Carnegie, Pittsburgh, first arriving to Australia on 25 July 1982 to join his sister who continues to live in Australia together with her family. The last visa the Applicant held was a Resident Return (Subclass 155).

2. On 13 November 2020, the Applicant was convicted in the District Court of Queensland of dangerous operation of a vehicle (causing death). He was sentenced to a term of imprisonment of three years suspended after serving six months.

3. Arising from this conviction, the Applicant was given notice on 16 December 2020 that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (‘the Act’). The visa was cancelled because a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) was satisfied that the Applicant had a ‘substantial criminal record’ on the basis that the Applicant had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution.

4. Following judgments delivered in EPL20[1] and Sillars[2] around the language in the notification letters used by the Department and specifically that the wording used in the letters to specify the time frame available to seek revocation did not reflect the legislation, the Applicant was renotified of the cancellation decision on 3 December 2021.

   [1] EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173.

   [2] Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174.

5. The renotified notice invited the Applicant to make representations to the Department of Home Affairs (‘the Department’) in relation to whether there was ‘another reason’ under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa. The Applicant did so by way of a submission dated 5 December 2021.

6. In response to this representation for revocation, on 11 August 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision.

7. The Applicant lodged an application for review by the Tribunal under s 500(1)(ba) of the Act. The decision made by the delegate of the Minister which is before the Tribunal is the delegate’s decision of 11 August 2022 not to revoke the cancellation of the Applicant’s visa.

8. The relevant question for this matter is twofold: whether the Applicant passes the character test as detailed in s 501(6) of the Act and if he does not, whether there is another reason why the cancellation should be revoked under s 501CA(4)(b)(ii) of the Act having regard to the principles and the matters for consideration prescribed under Ministerial Direction 90 (the Direction).[3]

   [3] Direction No. 90 – Migration Act 1958 (Cth) – Direction under section 499 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

9. A hearing was conducted on the 12 October 2022. The Applicant appeared in person and was represented by Ms Victoria Lenton of Lenton Migration Law. The Minister was represented by Mr Matthew Hawker from Sparke Helmore Lawyers.

10. The Tribunal had regard to the documents listed in Annexure A. 

11. For the following reasons the Tribunal sets aside and substitutes the decision to not revoke the cancellation dated 11 August 2022.

    Procedural matter arising from the hearing – Applicant giving evidence at the hearing

12. By way of email on 4 October 2022, Ms Lenton notified the Tribunal that:

    ‘the Applicant wishes to rely on his written statement filed with the Tribunal (dated 22 March 2022), and does not wish to give oral evidence at the hearing. The Applicant has been diagnosed with a severe psychotic illness (schizophrenia), and the process of giving evidence in front of the Tribunal will cause him severe distress.’

13. A useful summary of the Applicant’s mental health history was provided by Dr Russ Scott, Forensic Psychiatrist, Prison Mental Health Service, in a February 2021 report, extracted here:

    “Prior to 2018, Mr Jasick had no history of mental illness. On 30 December 2018, Mr Jasick was charged with dangerous operation vehicle causing the death of the passenger. His then partner, Isobel Lampard, drowned when the vehicle Mr Jasick was driving went into the Noosa River near a ferry crossing.

    Subsequently, from at least early 2020, in the context of the stressors of his grief and the pending trial and being the primary carer for his 93-year-old mother, Mr Jasick’s mental state deteriorated and he manifested paranoid delusions about a conspiracy involving his neighbours and even strangers in the street whom he believed were persecuting him. Mr Jasick also described derogatory auditory hallucinations and he began to self-isolate even from his extended family.

    After he made several complaints to the police, on 9 July 2020, Mr Jasick was assessed at his home in Southport by the Gold Coast community mental health service Acute Care Team who made a provisional diagnosis of a major mental illness and offered Mr Jasick treatment. After Mr Jasick demonstrated no insight into his mental illness and refused treatment, a Recommendation for Assessment was made and, with the assistance of the Queensland Police Service, Mr Jasick was conveyed to the Gold Coast Hospital.

    Between 9 July - 4 August 2020, Mr Jasick had an involuntary admission to the Older Persons Mental Health Unit of the Gold Coast Hospital. On admission, Mr Jasick was thought disordered with pressured speech and persecutory self-referent delusions. Since Mr Jasick’s judgement was acutely impaired and he was profoundly insightless of his mental illness or need for treatment he was made subject to a Treatment Authority pursuant to section 18 of the Mental Health Act 2016 (Qld).

    Collateral information obtained from his sister suggested that Mr Jasick may have had psychotic symptoms for at least the previous five years. During the mental health admission, Mr Jasick’s psychosis and irritable mood responded to oral anti-psychotic medication which he only accepted reluctantly. During the admission, a CT head scan reported mild age-related cerebral atrophy.

    On 13 August 2020, the Mental Health Review Tribunal reviewed Mr Jasick’s Treatment Authority. Having considered the report of his previous treating community psychiatrist, the Mental Health Review Tribunal concluded that Mr Jasick did not have capacity to accept treatment for his psychotic illness and confirmed the Treatment Authority.[4]

    [4] G Documents page 51-52.

14. The following medical assessments relating to the Applicant’s schizophrenia and/or his ability to present evidence in a context similar to a Tribunal were available:

    (a)Brief assessments conducted by International Health and Medical Services (IHMS) while the Applicant was in immigration detention spanning May to December 2021. Diagnosis of schizophrenia by various qualified medical practitioners. Some reports note a remission of the schizophrenia while on medication.[5]

    [5] G Documents, pages 622-687.

    (b)Dr Russ Scott, Forensic Psychiatrist, Prison Mental Health Service, 2 February 2021:[6]

    As a consequence of his psychotic illness, the sedating anti-psychotic medication he has been prescribed, disordered sleep and the mild cognitive impairment he may have, Mr Jasick’s concentration and executive function are likely to be impaired. In the context of his grief over the drowning of his partner, his trial and subsequent sentencing and his current imprisonment as well as his anxiety over the welfare of his elderly mother and being separated from his supportive sister, Mr Jasick’s capacity to meaningfully consider and complete the documentation for any appeal is likely to have been impaired.

    (c)Mr Damien Thomas, Psychologist, 9 October 2020:[7]

    Information provided by Mr. JASICK upon assessment, together with clinical observation and psychometric testing, indicates that he meets the (DSM-5) diagnostic criteria for PTSD. Mr. JASICK had remained engaged in psychological therapy in relation to the trauma associated with the accident. Most recently, however, Mr. JASICK has experienced a significant deterioration in psychological functioning resulting in several weeks’ hospitalisation. His documented psychosis is assessed to be correlated with exposure to several noteworthy stressors, including the current legal matter.

    (d)Two Mental Health Services Case Reviews from Gold Coast University Hospital.  The first, dated 15 July 2020, recorded: ‘lack of social deterioration and negative symptoms suggests not a diagnosis of Paranoid Schizophrenia, but of Persistent Delusional Disorder.’[8]

    (e)The second, dated 19 August 2020, recorded: ‘Late onset Schizophrenia’.[9]

    [6] G Documents, page 52.

    [7] G Documents, page 611.

    [8] G Documents, page 177.

    [9] G Documents, page 327.

15. In response to Ms Lenton’s indication that the Applicant would not appear to provide evidence, Mr Hawker responded by way of email dated 11 October 2022 submitting that the Minister continued to request the Applicant appear, noting, ‘there is no medical evidence to support the claim about the distress he will suffer giving evidence.’ In addition, Mr Hawker noted that it would be ‘most unusual’ for the Applicant not to give evidence in his own matter and that the hearing could be managed in a way so as to minimise any distress the Applicant may face.

16. At the hearing these matters were aired, and Ms Lenton submitted that the Applicant is ‘lucid and is able to answer questions’, though reinforcing her continuing concerns about his mental health. Noting that Ms Lenton was not objecting to the Applicant giving evidence, I determined that the Applicant be questioned but at a cautious pace and specifically instructed Mr Hawker to reflect on the extent of the questions relating to the past and whether each and every one is necessary.

17. The Applicant’s representative requested that the hearing be limited to one day due to his condition. I rejected this request to ensure both parties have sufficient time to present their case, though the option was given to the Applicant not to appear in person if the hearing continued into a second day.[10]

    Considerations

    [10] Transcript, p 7, lines 1-25.

    Finding on the character test

18. The Applicant was convicted for dangerous operation of vehicle (causing death) and sentenced to imprisonment for 3 years to be suspended for 4 years after serving 6 months.

19. Section 501(6)(a) of the Act, the Character test, states:

    For the purposes of this section, a person does not pass the character test if:
    the person has a substantial criminal record (as defined by subsection (7));

20. Subsection (7) of the Act states:

    For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c) the person has been sentenced to a term of imprisonment of 12 months or more;

21. The Applicant served a term of 6 months but was sentenced to 36 months. In Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 (20 April 2010) at [12] the Full Court found that a ‘wholly or partly suspended’ sentence falls within the expression ‘sentenced to a term of imprisonment’ in s 501(7) of the Act.

22. Ms Lenton did not contest that the Applicant does not pass the character test.

23. As the Applicant was sentenced for a period of imprisonment of 12 months or more, and as such I find that he does not pass the character test and that his visa was cancelled by operation of law.

    Whether there is another reason why the cancellation should be revoked

24. Under s 499 of the Act the Minister may give directions to those who have functions and powers under the Act. Those with such functions must comply with any given directions. Direction 90 is relevant to matters of revocation of a mandatory cancellation of a visa under s 501CA of the Act.

25. The Direction has overarching principles along with primary and other considerations that should be considered with detailed guidance under each. The primary considerations are:

    ·protection of the Australian community from criminal or other serious conduct

    ·whether the conduct engaged in constituted family violence

    ·the best interests of minor children in Australia

    ·expectations of the Australian community

26. The other considerations are:

    ·international non-refoulement obligations

    ·extent of impediments if removed

    ·impact on victims

    ·links to the Australian community, including strength, nature and duration of ties to Australia and impact on Australian business interests

27. Informed by the Preliminary guidance in Part 1 of Direction, I now turn my mind to applying the guidance to exercising the discretion as to whether there is another reason why the cancellation should be revoked as detailed in Part 2 of the Direction.

    Primary Consideration 1: Protection of the Australia Community

28. Direction 90 instructs decision makers to have ‘particular regard to the principle that entering or 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.’ In addition, the Direction states that decision makers should also give consideration to the nature and seriousness of the conduct and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

    Nature and seriousness of the conduct

29. The nature of the conduct was made available to the Tribunal in the form of the sentencing remarks of Judge Rosengren from the District Court of Queensland (G documents pages 36-42). From these sentencing remarks I have extracted a summary of the offending:

    at about 9.10 pm on the 30th of December 2018, there was a single vehicle crash on Maximillian Drive at Noosa North Shore, in the vicinity of the ferry landing. There were a number of road or traffic control measures that were along the 20 roadway prior to that landing. There was a reduction in speed limit to 40 kilometres an hour about half a kilometre before the landing. There was then a reduction of speed limit to 20 kilometres about 150 metres before the landing. Then there was a “speed bump ahead” warning sign about 118 metres before the landing, a painted road marking for speed reduction about 113 metres before the landing, a speedbump warning sign approximately 77 metres before the ferry landing, and there was a ferry warning sign: “prepare to stop” warning sign, and a flashing amber light about 75 metres before the landing. There was a raised and painted speedbump across the entire road about 75 metres before the landing. There was then a stop sign and “ferry open/closed” sign with “wait here” instructions about 16 metres before the landing, and there was a stop line painted road marking and 10 kilometres per hour speed sign about 13 metres before the ferry landing. The crash occurred when you drove your Jeep four-wheel drive wagon off the end of the ferry landing and into the water.

30. In addition to the sentence for dangerous operation of a vehicle causing death, the Applicant was also convicted of the summary offence by Her Honour of ‘driving a motor vehicle whilst over the middle alcohol limit, but not over the high alcohol limit’.[11]

    [11] G Documents, page 37.

31. The only other entry on the Applicant’s criminal record is a breach of a Domestic Violence order in 2003 that was recorded as a no conviction and noted by Her Honour in the sentencing remarks. The sentencing Judge also referred to the Applicant having an historical traffic offence of speeding between 13 and 20 kilometres over the limit. In commenting on these offences, Her Honour remarked that they represent ‘an irrelevant criminal history and traffic history.’[12]

    [12] G Documents, page 38.

32. The Respondent contended in submissions that the offending aligns with what the Direction identifies as being viewed as ‘very seriously’. It was argued by Mr Hawker that it aligns with one of the three types of offending listed in the Direction, namely, ‘violent and/or sexual crimes.’ It was contended that the sentencing Judge’s decision to sentence the Applicant to imprisonment reflects this seriousness arguing that imprisonment is the ‘last resort in the sentencing hierarchy’.[13]

    [13] Respondents SFIC, 6 [25].

33. The Applicant’s representative, Ms Lenton, countered this view in written submissions by arguing that the Applicant’s offending does not align with any of the type that are described as being viewed ‘very seriously.’ At the hearing Ms Lenton argued that although the offending involved the loss of life and there was evidence of extremely poor judgement being brought to bear, it is not an offence that would be deemed on the most serious end of the spectrum which include characteristics of the intentional application of violence and harm to another individual.

34. In considering the weight to be given to the nature and the seriousness of the conduct as guided by the Direction it is important to first resolve whether the offending is of a type that is explicitly deemed in the Direction to be ‘viewed very seriously by the Australian Government and the Australian community’. As noted, there are three types described in the Direction, being:

    • Violent and/or sexual crimes;
    • Crimes of a violent nature against women or children, regardless of the sentence imposed;
    • Acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

35. The first conduct to be considered is the conduct arising from the conviction on dangerous operation of vehicle (causing death).

36. The Respondent claimed that the Applicant’s offending ‘has escalated in seriousness to the point of the loss of human life’.[14] At the hearing Ms Lenton questioned this characterisation by noting that it is a single offence and that there are no other relevant offences. She noted that the sentencing Judge found the Applicant’s traffic history and breach of a domestic violence order fifteen years ago as ‘irrelevant’. I agree. The characterisation of the Applicant’s offending as escalating is a difficult statement to reconcile with the facts. There is no claim nor inference that the nature of the conduct that led to the death of the Applicant’s partner was preceded by any violence, whether intentional or through negligence. The escalation the Respondent refers to appears more aptly to be described as an anomaly.

    [14] Transcript, p 9, lines 4-5.

1. Ms Lenton, through written submissions, acknowledged the seriousness of the crime but argued that there are mitigating factors including that the Applicant has a single conviction in his life, the two other offences on his record were described by the sentencing Judge as ‘irrelevant’ and that he has no history of repeated criminal offending. The submission noted that the maximum penalty for operation of a motor vehicle causing death is 10 years imprisonment whereas the Applicant was sentenced on the lower end of this scale to 3 years suspended after serving 6 months. It was also noted that the Applicant pleaded guilty to the criminal charge which was acknowledged by the sentencing Judge.

2. Regarding the nature of the offence, it was argued that it did not involve violence or sexual assault, nor that it was targeted against another person. In addition, Ms Lenton submitted that the Applicant had not provided any false or misleading information to the Department, had not re-offended since his conviction and that the Applicant’s serious mental disorder would have contributed to the Applicant’s poor judgement on the night in question.

3. Mr Hawker noted that the period of imprisonment of three years, including an actual period of time served for someone’s first conviction, given that the domestic violence did not have a conviction recorded, is an objective measure of the seriousness upon which the criminal offending was viewed. He added that the sentencing remarks include where an action ‘causes the death of another, punishment which strongly denounces the conduct will be imposed.’[15] It was noted that the Applicant’s conduct had caused death.

   [15] G Documents page 39.

4. The case was made that the specific nature of the drowning of the Applicant’s partner on that night was a violent act. Mr Hawker distinguished drownings in general from the specific nature of the drowning that led to the Applicant’s conviction.

5. In turning my mind to consider the nature of the offence, I note that in the sentencing remarks the point is made that there is an element of deterrence in sentencing the Applicant such that the public must have a ‘level of understanding that those engaging in driving, they must do so carefully to protect other road users.’[16] In other words, it was acknowledged that the sentence itself had a component that was not related to the severity of the Applicant’s actions but rather a general purpose of deterrence. The sentencing Judge found the Applicant to have displayed poor judgement in undertaking an ‘ambitious’ journey after having consumed a not ‘insignificant quantity of alcohol.’[17] But there is no view in the sentencing remarks of an intention by the Applicant to commit a violent act or the act of drowning suffered by the victim to have been in of itself of a violent nature. Nevertheless, the Applicant showed poor judgement on repeated occasions through that night when he first decided to drive and then continued to drive despite the road conditions and his own inebriation. Based upon the evidence before me I find that while the single offence which triggered the visa cancellation does not fall into the categories set out in paragraph 8.1.1.(1)(a)(i) to (iii) of the Direction, self-evidently where a Court finds that the non-citizen caused the death of another person, that should be considered very serious.  For this reason I place considerable weight against revocation.

   [16] G Documents page 39.

   [17] G Documents page 39.

6. Mr Hawker made further submissions that the Applicant’s earlier actions relating to a domestic violence order should also be considered, which I concur as the Direction includes ‘other conduct’.

7. The details of this incident were provided by the Applicant in a written statement. According to his statement which was consistent with his oral evidence, ‘In 2003, my girlfriend put a Domestic Violence Order against me. We had a relationship that had a lot of verbal conflict (but no physical conflict). On 17 May 2003, we were drinking together, and she became angry and pushed me. I pushed her back, and she fell and twisted her ankle.’[18]

   [18] Applicant’s statutory declaration dated 22 March 2022.

8. Ms Lenton noted that the outcome from the Magistrates Court on that matter was that the conviction ‘is not recorded’ as is shown on the Bench Charge Sheet.

9. At the hearing it was raised by Ms Lenton to the Applicant that the record reflected a ‘breach’ of a Domestic Violence Order. The Applicant claimed not to remember there being any prior incident that would have led to a Domestic Violence Order. He believed that his then girlfriend just wanted to get him into trouble.[19]

   [19] Transcript, p 16, 15-21.

10. In the Applicant’s submission he accepted full responsibility for the act which was noted to have taken place 19 years ago. It was claimed to be a one-off incident and an aberration of his behaviour, a claim that was supported by a clear record for the subsequent 19 years.

11. At the hearing the Applicant referred to the push that led to the woman falling as being ‘accidental’. This was challenged by Mr Hawker, specifically, by questioning how a push that led to the woman falling could be accidental. The Applicant said:[20]

    Well, I don’t know, I guess she pushed me like this and I just gave her a little shove like that. And then she went, you know, she - - -

    [20] Transcript, p 23, 34-35.

12. Mr Hawker noted that in the Applicant’s statutory declaration, he had not mentioned an accidental push but rather that ‘I pushed her back’. This is relevant as Mr Hawker asked whether the Applicant saw his actions as acceptable. He responded,

    I don’t know what I see it as.  It’s just one of those things that happened, you know, it’s just one of those things that happens.  I didn’t mean to push her to push her down, you know, and make her fall or anything like that.[21]

    [21] Transcript, p 23, 39-42.

13. The Applicant asserted that he didn’t fight with his then girlfriend.

14. I note the age of the offence, that there is no other instance of family violence, that no conviction was recorded, no punishment was given, and the Applicant was not charged with assault. I acknowledge that any domestic violence is unacceptable, a view reflected in 8.1.1(1)(a)(iii) of the Direction by way of ‘acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed’. But in considering the weight I place on the Applicant’s actions I note that the evidence before me indicates that the incident was a single incident nearly two decades ago. The violence was a push rather than a more violent action such as a punch. Noting all of the above I place minimal weight against revocation for the reason of the Applicant’s 2003 conduct.

15. The Applicant’s other conduct that is of relevance is his traffic history which is very short for someone who has been behind the wheel in Australia for nearly 40 years. It amounts to a single offence in 2014 of exceeding the speed limit for which he received a fine and 3 demerit points.[22] I place very minimal weight against revocation based upon the seriousness of his past driving conduct.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

    [22] G Document Traffic Report page 105.

16. When considering the risk to the Australian community the Direction explains that decision-makers ‘should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.’ In considering this factor decision-makers must consider the nature of the harm to individuals or the Australian community if the Applicant were to engage in the conduct again as well as the likelihood of the Applicant engaging in such conduct.

17. Mr Hawker argued in submissions that the potential harm from reoffending is very serious and would affect the physical and psychological wellbeing of members of the Australian community. Regarding the likelihood, it was argued that there are ongoing and unacceptable risks claiming that the Applicant has not ‘identified and addressed the link between his alcohol use and criminal history’. Mr Hawker referenced the Applicant’s domestic violence breach and noted that it was self-reported as being committed under the influence of alcohol. He argued that the Applicant has not participated in any rehabilitation in relation to his alcohol misuse and has instead sought to attribute blame to his deceased partner by claiming that her yelling had distracted him while he was driving.

18. These factors, Mr Hawker argued, are not mitigated by sufficient time in which the Applicant has been in the community to show a changed behaviour noting that he has been in custody or immigration detention since November 2020. In addition, the Applicant’s psychologist attributed a ‘low risk’ to the Applicant which, the respondent’s submission argued was an unacceptable level of risk.

19. The Applicant’s lawyer submitted that there is a very low risk of recidivism noting the remarks of the sentencing Judge: ‘I have no doubt whatsoever that you are deeply and genuinely remorseful for your actions on that night of December 2018. I also accept that you are at a low risk of reoffending and you pose a very low risk of further physical harm to members of the community.’[23]

    [23] G Documents page 40.

20. Ms Lenton also referred to the consultant psychologist’s remarks:

    In my opinion risk of reoffending is low. As previously noted, Mr. JASICK’s personality is characterised by a conscientious and agreeable demeanour. He has, within this context, a stable vocational history. Moreover, Mr. JASICK has no previous criminal convictions, a creditable traffic history (one recorded speeding fine) and has displayed a long-standing commitment to pro-social aspirations and behaviour. The present matter has greatly affected Mr. JASICK on the basis of the loss of his partner; this circumstance is exacerbated by his role in the fatal motor vehicle accident. Moreover, Mr. JASICK’s recent hospitalisation remains indictive of his vulnerable psychological state.”[24]

    [24] G Documents page 611.

21. Ms Lenton brought the Applicant’s statements regarding his likelihood of reoffending to the attention of the Tribunal. These remarks include a commitment not to re-offend, acknowledgement of his responsibility but that it was not ‘done intentionally’ and a sense of devastation by the death of his then girlfriend which he has to live with for the rest of his life. In addition, the highlighted remarks include the Applicant committing to not driving again in the future, receiving support from his sister and that he bears the burden of a serious mental illness for which he is taken medication. At the hearing he committed to continuing to see a psychiatrist.

22. Regarding the Applicant’s past and future driving, the Applicant confirmed at the hearing that he has had only one traffic offence other than the disqualification period associated with the death of his partner. Mr Hawker noted the disqualification period on the Applicant’s driver’s licence had expired and put to the Applicant that there was no impediment to him re-applying for his licence, which had been cancelled. The Applicant responded that he has no intention of driving again.

23. Pertaining to the Applicant’s risk of re-offending, at the hearing a number of relevant issues were contested including the Applicant’s level of alcohol drinking, his view that there was a police cover-up, the relevance of the Applicant not acknowledging that he has schizophrenia and where the Applicant would live if the cancellation of his visa was revoked. Each of these are discussed below:

    The Applicant’s drinking

24. Ms Lenton noted the sentencing Judge characterising the Applicant’s drinking habit as being an ‘infrequent user of alcohol’. She noted that the psychiatrist from IHMS who works in the detention centre recorded that his self-report consumption of alcohol was 2-3 beers, once or twice a week.[25] She noted that there is no mention of ‘alcoholism’ in any medical history available to the Tribunal.

    [25] G Documents page 655.

25. Mr Hawker noted that the Gold Coast Hospital’s medical report dated 3 July 2020[26] states that the Applicant had self-reported consuming five litres of cask wine a week after the death of his partner, when he was last living in the community. Another medical report, a discharge summary from the Gold Coast Hospital, dated 4 August 2020[27] notes that his then circumstances were in ‘the context of increased alcohol consumption.’ Mr Hawker also referenced a Mental Health Services Progress Note dated 9 July 2020 that listed information from the Applicant’s brother-in-law and sister as including ‘Report that he has been drinking cask wine and they have also found a bottle of whisky in the house.’[28]

    [26] G Documents page 117.

    [27] G Documents page 389.

    [28] G Documents page 136.

26. The Applicant disputed that he ever drank five litres a week and instead claimed that he is a social drinker and that his self-reporting of 2-3 beers once or twice a week is accurate and not the five litres of cask of wine a week.

27. The Applicant’s sister gave evidence that she did not believe that the Applicant has a drinking problem. She said that she has not seen him drunk. She recalled that he drank cask wine but could not recall any incident regarding whisky. She said that despite the increase in his drinking during the period after the accident she did not characterise it as alcoholism.

28. Regarding the Applicant’s lack of undertaking alcohol rehabilitation, Ms Lenton argued that without clarity on the existence of a drinking problem there is no basis upon which to expect the Applicant to have undertaken any alcohol rehabilitation. 

29. The evidence of the Applicant’s drinking isn’t necessarily contradictory. The Applicant may well have drank a substantial amount of cask wine for a period after the death of his partner and subsequently drank less during other periods. I note that there is no clinical assessment of the Applicant having an alcoholism disorder, nor from the material before me does it appear from a lay perspective that he is an alcoholic.

30. Under cross-examination the Applicant said that his intoxication wasn’t a factor. He said, ‘I had a few drinks and that’s about it. I wasn’t drinking all afternoon and then all of a sudden get in the car and taken off, no way.’ The inference he conveyed at the hearing was different from his written statement dated 22 March 2022 in which he acknowledged that he, ‘was affected by alcohol before driving to the ferry.’

31. I noted to the Applicant that he had on numerous occasions said that if he had his time over he wouldn’t have left the function with his then partner. I asked the Applicant why he held this view. His response centred on having a bad feeling about what was going to happen. He didn’t acknowledge that he shouldn’t have drunk alcohol and driven.

32. The Applicant acknowledged having a heightened blood alcohol level which was noted in the sentencing remarks as mid-range. I note that in the sentencing remarks Judge Rosengren found that ‘there is little doubt that your intoxication was a contributing factor.’[29]

    [29] G Document page 39

33. While I accept that the Applicant is not an alcoholic, I am concerned by his wavering level of acceptance that alcohol played a role in the events of the night. The poor judgement he displayed that evening to drive a motor vehicle while under the influence of alcohol may continue into the future, and as such plays a role in considering the weight to be placed on this factor.

    The perception of a cover up

34. At the hearing the Applicant was engaged on the question of the surrounding environment at the time of the accident:[30]

    Ms Lenton:     So, the evidence that the police provided was that it was very well lit and there was really good signage?

    Applicant:      Yes.

    Ms Lenton:     Okay.  So, how do you explain that?

    Applicant:      I don’t know.  I can’t explain it.  I think they were just trying to cover up the fact that it was dark.  That’s what I’m thinking.

    [30] Transcript p 19, 3-10.

35. The Applicant believes that at the scene of the accident there were no signs and that it was not as well-lit as had been presented by the Judge (Sentencing remarks: ‘it was not pitch black, that there were ample signage and that the road was in good condition and was covered by street lighting.’)[31]

    [31] G Documents page 39.

36. Under cross examination he persisted that the road, ‘wasn’t lit up like that.  I know it wasn’t.  Because, I’d have never went in the water.  If it was all lit up like that I would have seen where I was going.’ Following this exchange the Applicant acknowledged that if he were to find himself on a road similarly lit up that it would present an equal risk to his ability to navigate.

37. Ms Lenton referenced a psychologist’s report in which it describes how the Applicant having been in an argument with his partner and while driving being distracted by her, he had, ‘inattentional blindness, which is essentially that it caused your attention to be distracted to the extent that you did not see any of the warning signs.’[32]

    [32] G Documents page 608.

38. In considering the Applicant’s contention over the road conditions, I note the concept of ‘inattentional blindness’. It is possible that the Applicant simply did not see the details of his surrounds and continues to believe that they were not as presented, as his memory tells him otherwise. These are not contradictory claims, but rather an explanation for the apparent contradiction in the Applicant’s evidence. I do not accept the Applicant’s claims that there may be malice involved but nor do I place weight on the Respondent’s concerns about the apparent contradictions. I accept that the lighting and signage was as described by the sentencing Judge. Of concern, though, is that the Applicant believes that under similar circumstances he would find it an equal risk to navigate.

    The relevance of the Applicant not acknowledging that he has schizophrenia

39. The Applicant has repeatedly refused to acknowledge that he has a serious mental disorder. This refusal culminated in a Treatment Authority, the background to which was included in the IHMS report and is reproduced here:[33]

    Between 9 July - 4 August 2020, Mr Jasick had an involuntary admission to the Older Persons Mental Health Unit of the Gold Coast Hospital. On admission, Mr Jasick was thought disordered with pressured speech and persecutory self-referent delusions. Since Mr Jasick’s judgement was acutely impaired and he was profoundly insightless of his mental illness or need for treatment he was made subject to a Treatment Authority under the Mental Health Act 2016 (Qld). On 13 August 2020, the Mental Health Review Tribunal reviewed Mr Jasick’s Treatment Authority. Having considered the report of his previous treating community psychiatrist, the Mental Health Review Tribunal concluded that Mr Jasick did not have capacity to accept treatment for his psychotic illness and confirmed the Treatment Authority.

    [33] G Documents page 625.

40. In discussions with the IHMS psychiatrist the Applicant refused to acknowledge that he required to be on the Treatment Authority.[34] Nevertheless, the clinical evidence before the Tribunal indicates that he has shown general compliance with it and has taken the medication Olanzapine as required.

    [34] G Documents page 626.

41. The issue that arises from the Applicant’s doubts about his diagnosis and acceptance of the need to receive treatment is that he may refuse to continue to take medication which in turn will lead to a revival of symptoms associated with schizophrenia. In the alternative, the Applicant was referred by family members, and the state system appeared to function as designed in such circumstances as the Applicant had imposed a Treatment Authority which included house visits and the observation of the Applicant taking his medication. The weight of this consideration is dependent upon whether the Applicant will have some support in the community including someone who will monitor his condition and ensure he takes his medication.

    Will the Applicant have a place of support in the community?

1. In written evidence, a friend, Ms Sue Cooke and her son Mr Kevin Cooke made an offer for the Applicant to stay with them as he transitions back to life in the community.[35] In the statement dated 20 December 2021, Ms Cooke explains how she has already moved his belongings into her and her son’s house. In her statement, Ms Cooke explains that she and her son were close friends of the Applicant and his late partner, and that she wanted to continue to support the Applicant.

   [35] G Documents 691-696.

2. At the hearing the Applicant’s sister gave evidence that, since writing the statement, Ms Cooke had sadly had a stroke and was in a nursing home.

3. At the hearing when asked what his arrangements were if he were allowed to remain, the Applicant said that he would stay with his niece. When I pressed the Applicant as to the details of the commitment his niece had made it emerged that it was a general offer of help. The Applicant’s sister explained that her daughter was living on a boat and as such it would not be possible for the Applicant to live with her.

4. The Applicant’s sister said that she will help him find a place to stay, that she would facilitate his reconnection with Older Person’s Mental Health Service, as well as with a psychiatrist and NDIS. In addition, she suggested that she would see him 3-4 times a week.

5. The Applicant has provided evidence of limited community support. Apart from his sister and at some earlier stage a willingness by Mr Kevin Cooke and his mother who is now in a nursing home, the Applicant did not provide any other evidence of support. Nevertheless, the commitment by his sister to continue to regularly visit is of some weight. As is the support he has through the state system which he has shown to accept and be guided by. 

   Applicant’s ability to obtain a driver’s licence

6. Evidence relating to the challenges the Applicant would face obtaining a driver’s licence in the form of the relevant section of the Transport Operations Road Use Management Driver Licensing Regulation 2010 (Qld) were presented by Ms Lenton at the hearing. This evidence was new.

7. Following a brief discussion on its admissibility Mr Hawker acknowledged that the Applicant had in his oral evidence accepted that he would accept and comply with any licensing requirements. Mr Hawker also acknowledged that through the various transport regimes across Australia there are criteria that would prevent people incapable of driving from holding a licence, but he argued that based upon the evidence before the Tribunal there is no material to suggest that the Applicant is incapable. I agree. While the Applicant has a serious mental disorder, he has been receiving treatment. Whether that treatment and the nature of the condition would prevent him from meeting the threshold requirement under any licensing regime is, without evidence, beyond the purview of the Tribunal to assess.

8. As such, it is speculative at this point to venture as to whether the Applicant has the ability to pass a medical test. On the material before the Tribunal, the Applicant’s licence was cancelled based upon a disqualification and as such he is currently unable to drive.  There would be legislative requirements he would need to meet, were he to apply for a new driver licence.  Given his circumstances and offending history, these may include a medical assessment.

   Remorse

9. The Applicant said that he felt ‘horrible’ after the incident. He described the deceased as the ‘love of his life’ and that he had been with her for six years. He accepted that he had ultimate responsibility as the driver of the car. While the Applicant’s evidence included elements that were framed by Mr Hawker as blaming the deceased, namely that she was hysterical and that she insisted on him driving, I accept that this was not the intent but rather his responses were recounting his recollection of evening.

10. The Applicant’s sister said that she believes that he regrets his decisions on the night of the accident. She said that she believes that he regrets it as she hears him ‘say it all the time’.

11. Based upon this evidence I find that the Applicant is genuinely remorseful.

    Conclusions on the risk to the Australian community

12. Regarding the Applicant’s level of risk to the community, the sentencing Judge determined that, ‘you are at a low risk of reoffending, and you pose a very low risk of further physical harm to members of the community.’

13. Mr Damien Thomas, the psychologist, found, ‘In my opinion risk of reoffending is low.’[36]

    [36] G documents p 614.

14. Mr Hawker suggested in oral submissions that the evidence available to Mr Thomas was not as complete as what is before the Tribunal and, as such, that the weight given to his opinion should be discounted. Mr Hawker suggested Mr Thomas had only relied upon what was reported by the Applicant and in particular his claims pertaining to the conditions of the road. He argued that if the full factual circumstances were put before Mr Thomas, then he may not have provided an assessment of low risk.

15. I note that in Mr Thomas’ report he refers to ‘Documentation Reviewed’ and then lists the following:

    ·Brooke Winter Solicitors referral e-mail;

    ·Queensland Police Service (QPS) QP9;

    ·Queensland Police Service (QPS) Traffic Record;

    ·Queensland Court Outcomes (QPS);

    ·Notice of Trial;

    ·Indictment;

    ·Statement of Facts;

    ·Forensic and Scientific Services (Queensland Government) -Autopsy

    ·Undertaking as to Bail;

    ·Bench Charge Sheet;

    ·Photographs of location where accident occurred (X 8);

    ·Mental Health Review Tribunal (treatment summary);

    ·Mental Health Review Tribunal (clinical report);

    ·Psychological Report (Ms. Joy HALLAM).

16. In addition, Ms Lenton noted that in his report Mr Thomas wrote: ‘[the Applicant] reporting of the circumstances remains consistent with the psychological concept of inattention or blindness.’ Ms Lenton made the valid point that this statement would not be logical were Mr Thomas not aware of the facts as accepted by the sentencing Judge, namely that the road was well lit and well signed.

17. I do not accept the arguments made by Mr Hawker regarding placing a diminished weight on Mr Thomas’ findings. It is clear that he had regard to the entirety of the evidence including the crucial picture of the discordant view between what was the factual situation, and what the Applicant perceived to have been the circumstances of the night. That this was taken into consideration alongside access to the entirety of the material listed above, I am satisfied that Mr Thomas’s assessment would remain unchanged even with the material available to the Tribunal.

18. In considering the risk that the Applicant poses to the Australia community, I note that considering the likelihood of the conduct repeating is a key element contained in the Direction. The Applicant does not have a driver licence. He acknowledges that he would need to acquire one, were he to aspire to drive again. As he has said that he does not intend to drive and without there being a cogent reason to disbelieve him, I accept that at this point he will not drive.

19. It is possible that through the effect of alcohol or his mental health condition the sensibilities he has expressed may change and that he will disregard authority and drive without a licence. This is possible. But with the regular support of his sister, official support from mental health professionals and contact with the few others he knows in the community I am satisfied that the Applicant will receive the necessary support to maintain his medication and that in turn will prevent the re-emergence of any delusions including those that may lead him to seek to drive a vehicle.

20. As far as the Applicant’s drinking, having found that he is not an alcoholic according to a medical standard or that of lay understanding of the term, I find that his alcohol consumption plays a limited risk in him setting aside his considered views on driving and once again sitting behind the wheel.

    Conclusion: Primary Consideration 1

21. I note that the offending for which the Applicant has served time in prison, and which led to the cancellation of his visa, along with his other conduct including the family violence and traffic infringement collectively amounts to conduct that weighs heavily in considering the protection of the Australian community. But I also note that without access to a licence, with a willingness to abide by the law, and receiving the support that has been outlined, the Applicant is a very low risk of re-offending in terms of the offence that triggered the visa cancellation and given the absence of any other significant criminal history, a negligible risk of the Applicant re-offending in a general sense. For this reason, I place low weight against revocation when considering the primary consideration of the protection of the Australian community.

    Primary Consideration 2: Family violence committed by the non-citizen

22. The Direction informs decision-makers that the Government ‘has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.’[37]

    [37] Direction, paragraph 8.2.

23. The history of the Applicant’s past domestic violence has been described above. In summary, the Applicant described the incident as, ‘In 2003, my girlfriend put a Domestic Violence Order against me. We had a relationship that had a lot of verbal conflict (but no physical conflict). On 17 May 2003, we were drinking together, and she became angry and pushed me. I pushed her back, and she fell and twisted her ankle.’

24. The Respondent made submissions arguing that the above mentioned 2003 incident of domestic violence is relevant, that it meets the criteria of family violence established in the Direction and that despite the offending not being frequent, nor having a cumulative effect, the Applicant has not undertaken any rehabilitation and this should weight against revocation.

25. The alternative view presented by Ms Lenton was that the action was not reflective of his overall character and was a one-off incident. Ms Lenton argued that it be given little or no weight.

    Conclusion: Primary Consideration 2

26. I accept that the actions of the Applicant amount to family violence and as such some weight needs to be given.  However, noting that the offending occurred nearly two decades ago without any evidence before the Tribunal that it has been repeated and that the nature of the offending could be described as been at the very low end of the scale. I note that the Direction at paragraph 8.2(1) states, ‘The Government’s concerns in this regard are proportionate to the seriousness of the family violence.’ Given that the seriousness is at a very low end I place very limited weight against revocation for this consideration.

    Primary Consideration 3: Best interests of minor children in Australia affected by the decision

27. Through the hearing it became apparent that the Applicant’s sister has two grandchildren who are minor children. As such there are two minors whose best interests must be considered.

28. No written submissions were made about or on behalf of these two children and there is no evidence before the Tribunal that the Applicant has any relationship with these children.  The Tribunal therefore is unable to make a determination about whether their best interests would be affected by the absence or presence in Australia of the Applicant.

    Conclusion: Primary Consideration 3

29. Based upon the evidence before me I place neutral weight on this factor.

    Primary Consideration 4: Expectations of the Australian Community

30. The Direction details the expectations of the Australian community which must be taken into consideration by the decision-maker. The Direction notes that ‘the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.[38]

    [38] Direction, paragraph 8.4(1).

31. It goes on to add, ‘In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere.’[39]

    [39] Direction, paragraph 8.4(2).

32. The Respondent argued in submissions that the Australian community would expect that someone who has committed an offence that led to the death of a person should not continue to hold a visa.  At the hearing Mr Hawker referred back to the written submissions and explicitly chose not to emphasise any further points.

33. The Applicant’s lawyer acknowledged that this factor weighs against revocation but argued that it should not be considered to be determinative. The Tribunal’s attention was drawn to the Principle in the Direction in which its noted that ‘Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life.’[40]

    [40] Direction, paragraph 5.2(4).

    Conclusion: Primary Consideration 4

34. The Applicant has lived in Australia for more than half of his life amounting to 40 years. This is a substantial length of time and any seriousness of the offending would be mitigated to some degree in the eyes of the Australia community as has been detailed in the Direction. In addition, that the Applicant’s other traffic offending is limited to a single separate speeding incident over a period of 40 years.  This would lead to a view that the Applicant’s actions in regard to the triggering offence were anomalous. I find that the expectations of the Australian community are such that limited weight against revocation should be given.

    Other Considerations

    Other Consideration (a): International non-refoulement obligations

35. The country of reference for the Applicant is the United States of America (United States).  There is no claim by either party, nor does evidence arise from the material, that there is a risk of a breach of Australia’s international obligations through the refoulment of the Applicant were the decision not to be set aside. As such I place a neutral weight on this consideration.

    Other Consideration (b): Extent of impediments if removed

36. The Direction requires the decision-maker to consider 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 summary, such considerations should be undertaken ‘in the context of what is generally available to other citizens of that country, taking into account the non-citizen's age and health; whether there are substantial language or cultural barriers; and there are any social, medical and/or economic support available to them in that country.’[41]

    [41] Direction, paragraph 9.2.

37. Mr Hawker argued that the Applicant would have the same access to social, medical and economic support as other United States citizens. Furthermore, he submitted, that there is no suggestion that the medication that the Applicant currently takes for what has been diagnosed as late onset schizophrenia is unavailable in the United States. While the Respondent acknowledged that the Applicant may face some difficulty in establishing himself in the US, that he has lived there for the first 30 years of his life was argued to mitigate this factor.

38. The Respondent noted that there is an agreement between the United States and Australia for the purposes of social security which may allow the Applicant to access old-age benefits in the United States.

39. Conversely, the Applicant’s lawyer, Ms Lenton, identified several impediments to removal primarily revolving around the Applicant’s schizophrenia and specifically that he lacks a capacity to accept treatment as was determined by the Mental Health Tribunal. The nature of the Mental Health Order as described at the hearing by the Applicant’s sister is that, while the Applicant was in the community, personnel would arrive with the medication and ensure that he took the medicine. Without such an order in place, as would be the case were the Applicant to return to the United States, Ms Lenton argued that he would face an increased risk to his health.

40. Mr Lenton claimed that the Applicant is unable to live by himself or take care of himself without significant medical and family support. It was further claimed that the Applicant has no friends or family that could provide social support in the United States. The Applicant’s entire immediate family, comprising of his sister and her family, are resident in Queensland and the Applicant has not left Australia since 1982.

41. The Applicant’s sister made a written submission that outlined her concerns were the Applicant to return to the United States. This included concerns over the lack of family and friends, whether he would receive any healthcare and medication, whether he could be able to secure accommodation and his inability to navigate administrative tasks such as opening a bank account, using public transport or technology, which she explained he struggles with in Australia.

42. At the hearing Ms Lenton noted that the Applicant’s sister stated that when her brother first received the notice refusing revocation, he didn’t do anything with it despite it having a limited time frame to respond. She said that he didn’t know where to start. The psychologist Mr Thomas noted that he was ‘overwhelmed’ and as such could not take action.[42]

    [42] G Document page 52.

43. In the Applicant’s statement he outlined his concerns which included his unfamiliarity with the United States as he has not lived there for 39 years, fears of not being able to get medical and psychiatric care, and concerns over a perceived inability to access health insurance because he hasn’t lived there and he has a pre-existing condition.

44. At the hearing the Applicant acknowledged that his brother-in-law has family in the United States but that he doesn’t know about them and that he hasn’t spoken to his brother-in-law about any support that he could receive from them.

45. The Applicant’s sister gave evidence that her parents did have some brothers and sisters, but that she doesn’t have contact with them. She referenced by name one cousin who was her age but had passed away some years earlier. She said that her husband has three sisters living in the United States, who haven’t met the Applicant, and that she hasn’t asked them about any support that they could give her brother. She added that her husband hasn’t been in touch with his family recently. She said that all of her husband’s relatives are over 70 years old and they would have the right to say no and not provide any support to the Applicant.

46. She also provided evidence of the support she has provided in preparing the Applicant for the possible outcome of being deported to the United States including accessing a debit card and buying luggage. She said that it would be difficult for her to continue to provide support for the Applicant were he to move to the United States. In Australia, she explained, she knows the system, but she does not know anything about how the system works in the United States.

47. In reviewing The Agreement between the United States and Australia—Social Security, I noted at the hearing that regarding access to Medicare it states, ‘Although the agreement between the United States and Australia allows the Social Security Administration to count your Australian credits to help you qualify for U.S. retirement, disability or survivors benefits, the agreement does not cover Medicare benefits.’ When this was put to Mr Hawker, he agreed that on the face of the material there would be a financial element to accessing the type of medical care the Applicant would require.

1. I accept that the Applicant’s brother-in-law has ‘relatives’ in the United States but these are not the Applicant’s relatives. Furthermore, without communication with them, noting their age and not having met any, there is no evidentiary basis upon which I could place any weight on the support that he could access through any of them. Without any support, the Applicant would be severely impeded in his ability to establish himself in the United States. He has a documented inability of handling matters that overwhelm him, most notably an example being his inaction when faced with the notice of non-revocation. He has relied upon his sister to investigate options for his banking in the United States and to prepare his luggage. Importantly, the Applicant has schizophrenia, a serious mental disorder that due to his reluctance to accept, required a Mental Treatment Order.  He requires regular medication. In the United States he would not receive the financial support to access the necessary health care, whether its psychological support or medication, as the agreement between the United States and Australia on social services does not extend to Medicare. For these reasons I place a very substantial weight in favour of revocation.

   Other Consideration (c): Impact on victims

2. This consideration relates to any known views of victims who are aware of the potential migration implications for the non-citizen.

3. There is no victim impact statement. The sentencing Judge noted in her remarks that the family of the victim ‘bears no ill feelings towards’ the Applicant. One of the victim’s best friends, Ms Sue Cooke, with whom she was living with at the time of her passing, provided a character reference for the Applicant. For the reason that there is no evidence of an impact upon victims, I place neutral weight on this factor.

   Other Consideration (d): Links to Australian community

   The strength, nature and duration of ties to Australia

4. This factor requires the decision-maker to have regard to the strength, nature and duration of the non-citizen’s ties to Australia.

5. The Respondent acknowledged that this factor weighs in the Applicant’s favour as he has lived in Australia for approximately 40 years and has his only known relatives, a sister and her family, living in Australia. It was submitted, though, that the weight given should not outweigh the primary considerations against revocation. 

6. The Applicant’s lawyer submitted that the Applicant is close to his sister who is his main support. The only other Australian with whom the Applicant has evidenced close ties with is Sue Cooke who provided statutory declaration in support of the Applicant.

7. Regarding his prior employment, the Applicant had worked for 14 years as a patient services attendant with the responsibility of setting up the operating theatre for surgeons.

8. Since arriving in July 1982 the Applicant has not left Australia, remaining in this country since the age of 31.

9. While the number of submissions regarding the Applicant’s ties to the community received by this Tribunal are scarce, the following facts are relevant:

   ·He has worked in this country and therefore contributed to the national economy. 

   ·His only sibling lives here. 

   ·He has not left Australia for nearly 40 years. 

   This is indicative of a person whose strongest ties with any country are with Australia.

10. No submissions were received regarding any impact non-revocation would have on Australian business interests and as such I place neutral weight on this.

11. For the reason of the Applicant’s nearly 40 years of living exclusively in Australia and the ties that would have formed exclusively to the Australian community, I place considerable weight in favour of revocation.

    Conclusion

12. The Direction notes that decision makers must take into account the considerations identified in sections 8 and 9 of the Direction where relevant. It also guides the decision maker in weighing these considerations, in that primary considerations ‘should generally be given greater weight than the other considerations.’ This does not preclude other considerations carrying greater weight, instead, each case must be considered on its merits.

13. In this case, the Applicant’s circumstances are such that the other considerations extent of impediments and the strength, nature and duration of ties to Australia I found to weigh very significantly and considerably in favour of revocation. The Applicant is an elderly man bearing a chronic mental health illness. He has lived in Australia for nearly 40 years without having ever left the country. His home country, the United States, does not provide for free medical care without which could lead to a risk of harm to the Applicant. He has no one close in the United States, only relatives through marriage who are themselves elderly and may not be willing to provide the necessary support.

14. Weighing against revocation were the expectations of the Australia community which I found to constitute only limited weight, family violence committed by the non-citizen for which I placed very limited weight and protection of the Australian community for which I place low weight. The death of a person is something that I have viewed very seriously but note that the risk to the Australian community is very low considering the Applicant’s remorse and the hurdles he would face in accessing a driver’s license even were he to choose to drive.

15. When considered as a whole, taking into consideration the primary and other considerations, I find that the cancellation of the Applicant’s visa should be revoked.

    DECISION

16. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the delegate of the Respondent dated 11 August 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

141.     

142.    I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Denis Dragovic

..........................[SGD].............................................

Associate

Dated: 3 November 2022

Date of hearing:	12 October 2022
Solicitor for the Applicant:	Ms Victoria Lenton Lenton Migration Law
Solicitor for the Respondent	Mr Matthew Hawker Sparke Helmore Lawyers

Annexure A- Exhibit Register

Exhibit Number	Description of Exhibit	Date of Document	Filing Date
1	G Documents (G1-G37, paged 1-741)	Various	24 Aug 2022
2	Applicant’s Statement of Facts, Issues and Contentions (paged 1-15)	Undated	20 Sep 2022
3	Applicant’s Statutory Declaration (paged 1-4)	22 March 2022	20 Sep 2022
4	Respondent’s Statement of Facts, Issues and Contentions (Paged 1-13) Including: Respondent’s Tender Bundle (R1-R6, paged 1-30)	30 September 2022 (22 March 2022)	30 September 2022