JDDM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

JDDM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2472 (27 July 2020)
Division:GENERAL DIVISION
File Number: 2020/2815

Re:JDDM
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:27 July 2020
Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 4 May 2020 not to revoke the mandatory cancellation of the Applicant’s Class BS Transitional (permanent) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class BS Transitional (permanent) visa is revoked.
......[sgd]..................................................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of a visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record under s 501(7) – history of mental illness – schizophrenia – reduced culpability – protective factors – best interest of minor children – decision under review set aside and substituted.
LEGISLATION
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made on 20 December 2018, commenced 28 February 2019)

WHO Profile on mental health in development: Fiji. Geneva, World Health Organization, 2013.
REASONS FOR DECISION
Senior Member M Griffin QC
27 July 2020
INTRODUCTION

The Applicant seeks review of a decision by the Respondent made on 4 May 2020 pursuant to subsection 501CA(4) of the Migration Act1958 (Cth) (the Act), which refused to revoke the cancellation of the Applicant’s Class BS Transitional (permanent) visa.
The Applicant is 44 years of age and is a citizen of Fiji. He first arrived in Australia on 5 November 1988, aged 12 years. He has nine children in all, whose ages range from 25 years to 6 years, seven of whom are minor children. He also has a grandson who is four months old. The Applicant has a criminal history, discussed below in detail, and which is, of course, highly relevant to the consideration of this matter.
ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to section 501 of the Act. The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test as defined by section 501 of the Act; or
(b)
that there is another reason why the original decision should be revoked

(section 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person: see subsection 501CA(1).
Subsection 501CA(4) provides that:
4The 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.
Subsection 501(6)(a) provides that a person does not pass the "character test" if the person has "a substantial criminal record". A person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more: subsection 501(7)(c).
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
Ministerial Direction No. 79
The Minister has made written directions pursuant to section 499 of the Act to guide decision-makers in the exercise of the power in subsection 501CA(4) (Direction No. 79, which commenced on 28 February 2019). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.
The Preamble of Direction No. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
(c)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 forfeit the privilege of staying in Australia;
(d)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;
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, 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; and
(f)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.
Part C of Direction No. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction No. 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations.
Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Primary Consideration 1 – Protection of the Australian community
Paragraph 13.1 of Direction No. 79 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 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 two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Sub-paragraph 13.1.1 of Direction No. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:
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), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;
e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
f)the cumulative effect of repeated offending;
g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
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; and
i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.
The risk to the Australian community
Paragraph 13.1.2 of Direction No. 79 states that decision-makers must have regard, cumulatively, to the following:
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.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
In relation to each child under the age of 18, decision-makers must decide whether revocation is in the best interests of that child.
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 non-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.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction No. 79 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.
The principles to be applied, as set out in paragraph 6.3 of Direction No. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.
Other Considerations
The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties to Australia;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
The considerations at paragraph 14.1 of Direction No. 79 include (but are not limited to):
(a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;
(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;
(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);
(d)Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;
(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.
Strength, nature and duration of ties
The considerations at paragraph 14.2 include:
(a)How long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;
(b)The strength, duration and nature of any family or social links with Australian citizens and Australian residents, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Impact on victims
Paragraph 14.4 of Direction No. 79 provides:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No. 79 provides for consideration of 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: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
Character Test
The Applicant was convicted on 21 June 2019 for the offence of Take/detain person w/I to obtain advantage-SI. For this offence, the Applicant was sentenced to 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months.
As a result of this sentence, and in accordance with subsection 501(6)(a) of the Act, the Applicant has a ‘substantial criminal record’ and accordingly, he does not pass the character test.
The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.
Protection of the Australian community (past conduct and future risk)
A highly relevant matter which affects this consideration in relation to many of the matters required to be considered pursuant to Direction no. 79, in the Tribunal‘s opinion, is the mental state of the Applicant at various relevant times, most importantly, including the offences committed in 2018.
The Applicant was examined by a psychiatrist, Dr Furst, who provided a report for sentencing purposes on 7 June 2019. The Tribunal is satisfied as to the propriety of the report in accordance with the code of conduct concerning expert witnesses in New South Wales and considers the report to be independent and non-partisan.
Dr Furst set out at page 2 of the report the relevant background, psychiatric, drug and alcohol history as follows:
[The Applicant] is a 43-year-old male of Pacific Islander heritage who was born in Fiji. He was married for 10 years, having 8 children from that marriage who live with his ex-wife of 10 years, N, in Villawood. He separated from N in 2012. He also has a child from another relationship. His 9 children range in age from 10 years to 25 years. He was single and was living in a Housing Department dwelling in Ashcroft at the time of his arrest. He has been in receipt of a Disability Support Pension over recent years for his apparent schizophrenic illness.
PSYCHIATRIC, DRUG & ALCOHOL HISTORY
[The Applicant] has three brothers and one sister. His initial schooling was in Fiji. [The Applicant] was apparently sexually abused when he was three years of age in Fiji. He migrated to Australia with his family when he was 12 years of age. He attended … High School to Year 9.
[The Applicant] witnessed domestic violence in his childhood. He was beaten by his father on a regular basis, almost daily. His father was an alcoholic. [The Applicant] left home at the age of 14 years and was living `on the streets', getting no assistance from DoCs or refuges.
He drank alcohol from the age of 14 years, which became a regular habit. He would drink up to daily in large amounts, often to the point of passing out from intoxication.
[The Applicant] moved to Byron Bay when he was 17 years of age, continuing to drink on a regular basis, but not as heavily as he had done over previous years.
[The Applicant] returned to Sydney and lived with his parents in St Johns Park when he was 18 or 19 years of age. He continued to drink heavily and also smoked cannabis up to daily at the time. He used heroin from the age of 18 or 19 years. There were drug-related offences and also violent offences from his late teens onwards, [the Applicant] ending up incarcerated on occasions from his early 20s, as reflected in his criminal history.
He suffered a stab wound burned in his right thigh in 1995 or 1996 when he was travelling on a train. The knife wound severed his femoral artery and led to extensive and life-threatening blood loss, [the Applicant] being treated at Royal Prince Alfred Hospital. He had trauma related symptoms in the following years, suggestive of PTSD, including negative thoughts, avoidance, hypervigilance and being scared of travelling on trains. Those symptoms largely resolved over the following 3-4 years.
He developed symptoms of depression, anxiety and suicidal urges from his early 20s, symptoms that continued in his late 20s. [The Applicant] was initially admitted to a psychiatric hospital when he was 25 years of age, feeling depressed and suicidal at the time.
His drinking decreased in his 30s. [The Applicant] continued to smoke cannabis and also used MDMA in his 30s. He used heroin on occasions.
He used `ice' from around 2015, approximately 0.1g per day.
[The Applicant] was smoking around 1g of cannabis per day and taking about three or four MDMA pills at a time in the years prior to his arrest in April 2018,
[The Applicant] experienced persistent paranoid thoughts about his wife N from around 2010 or 2011, delusions of infidelity, and heard messages on the radio telling him he had to kill his wife. He was admitted to Logan Hospital in Brisbane in 2012, where he was diagnosed with schizophrenia and prescribed the antipsychotic medication Olanzapine. [The Applicant] had a further admission to Logan Hospital around 2013.
He moved back to Sydney four years ago, being placed under the care of the local mental health team at Liverpool [CoMHET] prior to his arrest last year. He was seeing a psychiatrist on a regular basis and his case manager was…:
[The Applicant] reported symptoms of psychosis in the 12-months leading up to his offending in April 2013. He reported hearing "mean and harsh voices" and felt paranoid in his thinking. [The Applicant] was preoccupied about his former wife N cheating on him, feeling angry when he thought about her being unfaithful. He believed that N’s friends were following him.
There have been persistent thoughts and messages telling him to kill N over the last 8-9 years, both in the years prior to his arrest in 2018 and during his incarceration over the last 12 months or so, at least twice weekly.

A further report was prepared, apparently for these proceedings, by psychologist Mr H. Cinar. Aspects of this report will be discussed below.
The Applicant’s background also includes sexual abuse at the age of three by a 19-year-old male relative which, in the Tribunal‘s view, has continuing effects on the Applicant. During the Applicant’s youth and teenage years before he left home, he was subject to physical abuse by his father, an alcoholic. The Applicant lived on the streets at various times and has lived in many states in parts of Australia.
Applicant’s Criminal History
The Applicant offended as a child and was dealt with appropriately. None of the offences, however, during that period should be regarded as carrying particular weight.
The Applicant’s adult offending commenced in 1994 and concluded with offences, the most serious of his offending, in 2018. Throughout the Applicant’s criminal history, there are a number of offences recorded, many of which are property related, some offences of violence, including a domestic violence offence and other traffic offences. It can be said overall, that the Applicant’s offending increased in seriousness, although this must be regarded against the background of his diagnosed psychiatric illness which the Tribunal accepts was, at least, operating by 2010 – 2011.
There were periods of time when the Applicant did not offend. The Applicant, at hearing, asserted that he stopped consuming alcohol some years ago and he has not consumed alcohol since. This is, in the Tribunal’s opinion, some evidence in support of the fact that the Applicant is able to exercise some degree of self-control over his behaviour. This is a relevant consideration overall.
The Respondent submits that:
many of the offences are on the lower end of seriousness, the length of time and number of offences should weigh heavily against the Applicant… There are several very serious offences in his history.
It is dangerous indeed to take a superficial view of the Applicant’s criminal history. It is necessary to analyse it in some detail. For example, although the 1997 offences of malicious damage are recorded as having attracted a custodial sentence of six months imprisonment, an appeal against the severity of the sentence resulted in a recognisance pursuant to the former section 558 of the Crimes Act 1900 (NSW) being ordered. Neither party could explain a period of imprisonment around that time; but it seems not to have been connected to any primary offence for which the Applicant had earlier been dealt with.
In 2005, The Applicant was convicted of assaulting a police officer in the execution of his duty and resisting or hindering police officer in the execution of duty. In that case, the Applicant was recorded as having been sentenced to a period of 16 months imprisonment (non-parole period of 12 months) suspended on entering into a section 12 Bond.
The offences of April 2018 are by far the most serious and yet, in their context, as the sentencing judge, Judge Norman SC observed, the offence was of fairly limited duration and fell well below the mid-range of objective seriousness. The learned sentencing judge set out in sentencing remarks the facts in relation to the 2018 offences as follows:
The Form 1 offence occurred first in time. The offender sought to hail a bus. When the bus stopped, he had an exchange with the bus driver that resulted in him yelling and swearing at her, kicking and punching the doors for a period of time.
The next bus that came along is the one that leads to the index offence. When this bus driver stopped the offender started yelling at the driver, he took hold of the plastic edge of the driver cabin, he continued to yell at the driver and at one stage he threatened to stab the driver with a knife. The driver, of course, was very concerned about the offender's conduct. The offender continued to yell at him from his seat in the bus. This caused obvious alarm to other passengers who were on the bus, one of whom sought to intervene by asking the offender to sit down. The offender continued to yell at the driver and the passenger. He reached into his bag and he pulled out a metal cigarette lighter shaped like a gun. He held this gun shaped lighter and pointed it to the left side of the driver's head and said, "You drive the bus". He repeated the demands for the driver to drive the bus several times including swearing at him. Clearly, the driver was terrified by what was occurring. He did not realise that this was not a real gun. There were continued efforts by the driver to ensure that he was not shot. He agreed to take the offender wherever the offender wanted to go.
It is this driving of the bus that supports the advantage relied upon by the Crown. There were still other persons on the bus who were terrified by what was happening in relation to the driver of the bus. They managed to get off the bus including a person with a disability who had to leave her wheelchair behind. Arising out of those two events is an offence of assault concerning the first bus driver and an offence of detain for advantage concerning the second bus driver.
Her Honour considered that the Applicant expressed genuine remorse. The Tribunal is of the same opinion. The Tribunal also respectfully agrees with the sentencing judge’s statement that the mental health issues have been part of the offender’s life for a considerable period of time and he experiences the not unfamiliar psychosis and paranoia that are consistent with schizophrenia.
Furthermore, the Tribunal notes that no actual physical violence was perpetrated by the Applicant, although the Applicant’s behaviour would nonetheless, have terrified the bus drivers and passengers subjected to his two separate offences committed within a short time of one another.
Overall, the Tribunal has comprehensively reviewed the facts and circumstances in the material available in relation to all the offending and carefully analysed the Applicant’s criminal history. It contains offences of violence, including an offence in 2012 against a woman in a domestic setting, and there is a discernible escalation in behaviour. The terms of Direction No. 79, amongst other things, requires resort to sentences imposed by the Court. This is, of course, a perfectly practical guide to the level of offending although, not determinative.
Importantly, there have been periods of time where the Applicant has not been convicted of any offences. His offending was not relentless, nor in the Tribunal‘s view, is the offending, overall, viewed as anything more than low to mid-range in seriousness.
As to the most recent offending, since 2011, the Applicant is regarded by mental health professionals as having suffered from a “major mental illness”. This is further supported by Dr Furst. His report was provided to the Tribunal. The diagnosis relevantly was one of schizophrenia, post-traumatic stress disorder and substance use disorder related to illicit drugs.
In assessing the Applicant’s behaviour in relation to Consideration 1, both limbs of that consideration must be viewed with attention given to the Applicant’s mental state.
In the Tribunal’s opinion, the Applicant’s criminal culpability must, in the circumstances, be reduced by the fact that, in relation to the 2018 offences, he was suffering from schizophrenia, made worse because of his failure to take his medication for nine days leading up to those offences. This approach is not one that is peculiar to the facts of this case but rather, an application of a generally held and applied sentencing principle. That principle should apply equally to the types of considerations in this case.
In that regard, the moderately serious history should be judged in that light concerning the first limb of Consideration 1.
Having regard to the second limb, the future risk consideration, the very mental illness with which the Applicant suffers is likely to present the possibility of future offending particularly if the Applicant is not suitably medicated. The nature of the offending is likely to be a range from petty offending through to traffic offences, property offences and offences of violence.
The level of violence, however, seems more likely to be situational, as evidenced in the unlawful behaviour with police officers who attempted to arrest his ex-wife in 2005 and his behaviour in 2018. The impression the Tribunal has formed is that this Applicant is not someone who, as time has progressed, moved onto using real weapons to inflict personal harm, even taking into account his use of the lighter/replica gun in 2018.
There are, however, a number of protective factors which lessen, in the Tribunal‘s view, the likelihood of re-offending.
The Applicant is presently suitably medicated having been in immigration detention. While medicated, he has insight into his offending and the need for medication and controlling any drug use which he understands will lead to further offending. In the Tribunal‘s view, the Applicant is genuine and committed to rehabilitation although he has undertaken recently, very limited rehabilitation so far in the form of some drug and alcohol counselling sessions whilst in detention.
There are real protective factors present for the Applicant which reduces the likelihood of re-offending. The Tribunal was particularly impressed with the frankness and honesty and commitment of the Applicant’s 16-year-old daughter who sensibly and clearly understood her father’s condition, his need for assistance and her willingness to provide such assistance. The Tribunal was of the view that this was a genuine, real and practical attitude that was likely to yield positive consequences for the Applicant’s behaviour.
Having regard objectively to the Applicant’s criminal history, it should be regarded, according to Direction No. 79, as serious. This is, however, not an end of the matter. The Tribunal is also required to consider risk to the Australian community. In this regard, the Tribunal considers the Applicant, possessed of a serious criminal history in terms of Direction No. 79, is likely to re-offend.
There are some objective and other features to consider in all of this. The Tribunal is satisfied that there are protective factors, together with the evidence of the Applicant’s family members which suggest a real and practical control over the Applicant’s behaviour. Furthermore, it is the Tribunal’s view that the Applicant has insight into his offending.
The most significant feature, however, is that at least in the last period of offending, the Applicant was affected by mental health issues, on the evidence, not of his making.
The Applicant has contributed to Australian society having worked, the Tribunal infers from evidence, including the fact that he has worked in many states around Australia. Some leniency may be afforded to applicants who have contributed to Australian society. It is the view of the Tribunal that the Applicant has contributed in a very modest way. Furthermore, it is the Tribunal’s view that some further leniency should be extended to the Applicant on account of his mental health and its demonstrated connection to his most recent and most serious offending.
Although this consideration weighs against the Applicant, overall its weight must, in the Tribunal’s view, be substantially reduced by the incidence of the Applicant’s mental health issues.
Best interests of minor children in Australia
The Applicant has nine children living in Australia. Two are adults, their ages are 25 and 20. There are seven minor children whose ages range from 17 years to 6 years. There is also a grandchild, about six months of age, born in 2020.
Consistent with the normal approach in such decisions, it is not proposed to identify, in detail, those children.
The Applicant separated from his wife in 2014. That is within a year of the last child, A, being born.
The separation, the Tribunal understands, was due to a breakdown in the parent’s relationship and since that time the mother, N, has made contact between the children and their father difficult. It appears that after the relationship breakdown, the Applicant again resorted to the use of drugs.
The Applicant’s 16-year-old daughter, M, who gave evidence (discussed above) resumed a meaningful relationship with her father whilst he was in custody. She impressed as someone who was prepared to assist her father in attempting to re-establish a relationship with the other children.
Child M is also the mother of the Applicant’s grandchild. She is intent, as is the Applicant, in establishing a relationship with that grandchild and grandfather.
Although the children and the grandchild are clearly of different ages and the minor children live with their mother whose attitude is not well disposed to the Applicant, nonetheless, the Tribunal considers that their interests should be regarded relevantly equally, recognising of course a slightly different relationship which would exist with the grandchild.
It is an uncontroversial proposition that children should know and have a relationship with both parents. Should the Applicant be returned to Fiji, there is the prospect of contact via digital and electronic devices. That contact, however, is regarded by the Tribunal as being less desirable than the prospect of physical, face-to-face contact. The Tribunal recognises that M is 16 years of age and the older child, Ai, is presently 17 years of age, close to legislated adulthood.
The Respondent in outline accepts “that it is in the best interests of the Applicant’s minor children in Australia for the cancellation decision to be revoked”. And further, that the Tribunal should give consideration to the real possibility, so the Respondent says, of the Applicant relapsing, re-offending and therefore having a direct and significant impact on the best interests of his children.
The Tribunal acknowledges this is a relevant consideration.
The Tribunal, however, concludes that the best interests of the children in this case weigh strongly in favour of revocation of the cancellation decision.
Expectations of the Australian Community
This consideration has been the subject of extensive judicial discussion (see FYBR v Minister for Home Affairs [2019] FCAFC 185). It is not up to the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 79 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).
In the circumstances of this matter, the Tribunal finds no reason to displace the operation of Consideration 3 as discussed in FYBR v Minister for Home Affairs [2019] FCAFC 185.
There is reason, however, consistent with the reasoning above, to assess the weight of this consideration in the light of the Applicant’s mental health. In the event, the Tribunal is of the view that this consideration carries reduced weight because of those mental health factors.
Other considerations
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
The Applicant argues that non-refoulement obligations apply in this case arising from two separate bases.
The first is a specific allegation that the Applicant’s family member, who at a young age assaulted him, may seek reprisal or, in some other way, cause him serious harm. The Applicant says he is in fear of that family member. The second limb of the Applicant’s argument is that because of his mental health issues, he will be unlikely to receive proper treatment and therefore, will be discriminated against in a societal way as well as generally in the health system.
In the Tribunal‘s view, these objections lack the requisite basis for being regarded as non-refoulement obligations. The Tribunal accepts the Respondent’s submission that the allegations as portrayed lack the requisite “element of intention to harm”.
In that regard, therefore, this consideration has no application to the Applicant’s case.
Strength, nature and duration of ties
The Minister accepts in his outline that the Applicant has spent the majority of his life living in Australia and has all of his close family living in Australia, although some members of his family are unaware of the Applicant’s present situation.
Of considerable significance is the fact that the Applicant’s seven minor children, and his two adult children, all live in Australia and they are all Australian citizens. The Tribunal recognises that, in recent times, the Applicant has had limited contact with those children, although this does not detract from the fundamental ties the Applicant has to his Australian children.
On the evidence, it does not appear that the Applicant has made any real contribution to the Australian community although he has worked over various periods of time.
In the event, overall, the Tribunal concludes that this consideration carries some weight in the Applicant’s favour.
Impact on Australian business interests
There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.
Impact on victims
There is nothing in the material which suggests that this consideration is relevant to the Applicant’s case.
Extent of impediments if removed
Should the Applicant be removed from Australia to Fiji there is, in the Tribunal‘s opinion, the likelihood of the Applicant facing the usual sorts of difficulties in re-establishing himself in his country of origin; that is to say, adjustment in terms of social conditions, emotional adjustment and the practical need to find accommodation and work.
The Applicant of course is familiar with the Fijian culture and that familiarity will lessen the upheaval.
It is also the Tribunal’s view that there is additional weighting to be accorded to this consideration in relation to the Applicant’s mental health issues and how they will be dealt with in Fiji. The Tribunal is satisfied that without attempting to quantify the level of treatment, the Applicant will experience a far lesser level of treatment for his schizophrenia and other related conditions in Fiji than he would in Australia.
In Mr Cinar’s report, reference was made to a World Health Organisation journal in relation to mental health development in Fiji[1]:
“Ongoing challenges facing mental health service development and delivery in Fiji include: the stigma associated with mental health and illness… limited access to mental health care which remain focused in urban areas and at the country’s only psychiatric facility; lack of trained mental health professionals and allied mental health care workers; lack of mobilization of non-government organizations in supporting people with psychosocial disability living in the community.”
[1] Singh S, Chang O, Funk M, Shields L, Andrews A, Hughes F, Sugiura K, Drew N. WHO Profile on mental health in development (WHO proMIND): Fiji. Geneva, World Health Organization, 2013.
The Tribunal is satisfied that this represents a correct and current statement of mental health care in Fiji.
Overall, the removal of the Applicant to Fiji, in the Tribunal‘s opinion, is a matter of some weight to be judged in the Applicant’s favour.
CONCLUSION
The Tribunal is cognisant of the weight to be attached to the seriousness of the Applicant’s offending, the risk to the Australian community of future offending and the expectations of the Australian community, all of which have been analysed in detail above. However, the Tribunal places particular significance and weight on the substantially lessened culpability of the Applicant on account of his mental health and the best interests of his minor children. As discussed above, there are other considerations that also bear weight in the Applicant’s favour. The Tribunal considers that there is another reason to revoke the mandatory cancellation.

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 4 May 2020 not to revoke the mandatory cancellation of the Applicant’s Class BS Transitional (permanent) visa.
In substitution, the Tribunal decides that the cancellation of the Applicant’s Class BS Transitional (permanent) visa is revoked.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

.......[sgd].................................................................
Associate
Dated: 27 July 2020

Date of hearing: 15 July 2020

Date final submissions received: 16 July 2020

Solicitors for the Applicant: Nikjoo Lawyers

Solicitors for the Respondent: Australian Government Solicitor

[2020] AATA 2472

27 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date of hearing:	15 July 2020
Date final submissions received:	16 July 2020
Solicitors for the Applicant:	Nikjoo Lawyers
Solicitors for the Respondent:	Australian Government Solicitor