Konneh and Minister for Immigration and Border Protection (Migration)

Konneh and Minister for Immigration and Border Protection (Migration) [2017] AATA 773 (26 May 2017)
Division:GENERAL DIVISION
File Number(s): 2017/1422
Re:Musa Konneh
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member

Date:26 May 2017
Place:Sydney

The Tribunal affirms the decision made on 6 March 2017 by a delegate of the Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant’s visa.
...................................[sgd].....................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – visa – cancellation – character test – substantial criminal record – reckless wounding offence – protection of the Australian community – expectations of the Australian community – non-refoulement obligations – strength nature and duration of ties to Australia – extent of impediments if removed from Australia – mental health conditions – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499(2A), 501(3A), 501(6)(a), 501(7)(c), 501CA(4)
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
26 May 2017
THE REVIEWABLE DECISION

The applicant, Mr Konneh, held a Class XB Subclass 202 Global Special Humanitarian visa (the visa) that was cancelled on 1 May 2015 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) (the cancellation decision). He made representations to the Minister about why the cancellation decision should be revoked. On 6 March 2017 the delegate of the Minister notified Mr Konneh that a decision had been made not to revoke the cancellation decision. Mr Konneh has asked this Tribunal to review the decision not to revoke the cancellation decision.
THE LEGAL FRAMEWORK UNDER THE ACT
It is accepted by both parties that the applicant does not pass the “character test” as defined in ss 501(3A), (6)(a), and (7)(c) of the Act because he has a substantial criminal record, that is, he has been sentenced to a term of imprisonment of 12 months or more, and he was then serving a sentence of full-time imprisonment.
The issue for the Tribunal to determine is whether there is another reason why the cancellation decision should be revoked (s 501CA(4)(b)(ii)). In making that decision, the Tribunal must comply with Direction No. 65 “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (the Direction) made pursuant to s 499 of the Act (s 499(2A)). The provisions of the Direction relevant in this case are the general provisions set out in “Section 1 Preliminary”, and “Section 2 Exercising the discretion”, and the provisions set out in Part C that must be taken into account in relation to revocation requests.
The primary considerations in making the decision are set out in cl 13 of the Direction; they 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.
Other relevant considerations are set out in cl 14 of the Direction; they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Detailed guidance is provided in relation to each consideration. The considerations set out in cl 14 are not exclusive. Clause 8(4) of the Direction provides that “[p]rimary considerations should generally be given greater weight than the other considerations”.
THE EVIDENCE BEFORE THE TRIBUNAL
Mr Konneh refused to attend the video hearing that had been arranged by the Tribunal. The evidence before the Tribunal included the documents provided by the respondent pursuant s 501G of the Act, a bundle of documents tendered by the respondent, written statements and oral evidence from Mr Konneh’s father, step-aunt and her son, a recent medical report and oral evidence from Dr Nielssen, psychiatrist, and a written statement and oral evidence from Ms Mayoh. Ms Mayoh is case manager at The Crossing, a youth homelessness service funded by Mission Australia.
MR KONNEH’S PERSONAL BACKGROUND
Mr Konneh was born in Sierra Leone in April 1992. His mother disappeared during the civil war in that country. His father took him and other family members to Guinea in about 1997 or 1998. In 2007 the family came to Australia. At that time they included Mr Konneh’s step-mother and a step-sister and step-brother. A third child was born in Australia. The family lived with the family of the elder sister of Mr Konneh’s step-mother (the step-aunt). Conflict arose between Mr Konneh and the husband of his step-aunt. According to Mr Konneh’s father, Mr Konneh came home at all hours. Mr Konneh had to leave the home in 2007 when he was 15 years old because he would not follow the rules for living in that home. Although his father and the rest of the family later moved to another home that they shared with another family, Mr Konneh did not return to live with them. Thereafter, he had periods when he was homeless, living on the streets or in assisted housing, and periods of independent living secured with assistance from various youth services.
Mr Konneh and his father have been estranged since 2007. Mr Konneh has alleged that his father was violent towards him. His father strongly denied that allegation. The Tribunal accepts the evidence of Mr Konneh’s father, that he tried to guide his son to improve his behaviour but Mr Konneh rejected that guidance. The Tribunal accepts that Mr Konneh’s father did visit him when he was in prison and provided some assistance to him, including organising a job for him. Mr Konneh lost the job within about a week after he arrived late for work. His father said that Mr Konneh never contacted him when he was in trouble with the authorities and told his lawyers not to contact him. His father used to telephone Blacktown Police Station trying to get information about him.
His father is not prepared to have Mr Konneh live with him and his family unless he changes his behaviour, including stopping drinking alcohol and smoking. His father is very concerned that his other children may take the same path as Mr Konneh. He is taking measures to prevent that happening. Mr Konneh’s father told the Tribunal that if his other children followed the same path as Mr Konneh, he would prefer not to be alive.
The husband of Mr Konneh’s step-aunt had a daughter by another woman. Mr Konneh went to live with that woman and that girl. He had a relationship with the girl. He was told that he could not have such a relationship and the woman took out an apprehended violence order (AVO) against Mr Konneh. Mr Konneh breached the AVO four times. On the third occasion, Mr Konneh met the girl in the street. She told her mother.
Mr Konneh has a reported history of mental illness from about 2011, which will be addressed later in this decision.
MR KONNEH’S CRIMINAL HISTORY
Following is a summary of Mr Konneh’s criminal history, beginning with the most recent offence which resulted in the cancellation decision.
He was convicted of an offence of reckless wounding committed on 14 September 2013. On 30 September 2014 he was sentenced to a term of 27 months’ imprisonment with a non-parole period of 13 months. His sentence expiry date was 13 December 2015.
On 29 July 2013, Mr Konneh was convicted of the offence of common assault and released on a bond for 18 months. He was fined $150 for remaining on inclosed land not prescribed premises without lawful excuse.
On 9 July 2013, Mr Konneh was sentenced to imprisonment for eight months for each of two offences of Commit act of indecency with person 16 years or over to be served concurrently, with a four month non-parole period. The sentences were to commence on 10 March 2013, which meant he was paroled the day he was sentenced. He had exposed his penis to two female police officers who were interviewing him at a police station on 28 April 2012.
On the same day, 9 July 2013, Mr Konneh was also sentenced for the offence of Larceny. He had stolen white Dunlop Volley shoes on 14 July 2012. He was directed to perform 100 hours of community service work.
Also on that day, 9 July 2013, six other matters were “called up” for breaches of bonds imposed in relation to previous offences, and dealt with as follows:
·Contravene AVO (4 charges); convicted on each and released on 12 month bond;
·Resist or hinder police officer in the execution of duty; convicted and released on 12 month bond;
·Steal property in dwelling-house; convicted and released on 12 month bond.
All those offences date back to 2011 or 2010. The transcript for the court appearance on 9 July 2013, shows that an application under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) was not pursued because, according to Mr Konneh’s solicitor, “it would appear that Mr Konneh’s mental health symptoms have resolved” and he was apparently no longer suffering from a mental illness.
Other offences were dealt with in court on:
·16 January 2012: Use offensive language in/near public place/school which was proved without conviction and no further penalty imposed;
·14 February 2011: Not pay train fare and hold valid ticket; Fined $50.
The records of NSW Department of Corrective Services (the correction records), show that Mr Konneh was held in a correction centre during the following periods: 14 and 15 August 2010, 12 November to 13 December 2010, 4 July to 23 September 2011, 28 April to 6 July 2012, 14 to 17 July 2012, 3 January to 21 March 2013, 5 April to 24 April 2013, 14 September 2013 until 13 October 2014 when he was released on parole.
In a Breach of Parole report signed by two people on 6 and 7 November 2014, the Probation and Parole Service wrote that Mr Konneh appeared to be in breach of court based parole because he had reoffended. He had been charged with the offence Stalk/intimidate intend fear physical etc harm (personal) and had been bail refused to Parramatta Local Court on 10 December 2014. The recommendation was to hold the matter over until the finalisation of his court appearance. It was noted that “given the short period” that Mr Konneh had been subject to supervision prior to re-arrest, it was difficult to gauge his compliance but he had engaged with his mental health provider and reported on two occasions as directed.
The correction records show that he was released from prison on 13 November 2014.
In a further Breach of Parole report signed by two officers on 20 November 2014, the following was stated. Mr Konneh had been granted conditional bail at court and released from custody. A condition of bail was that he contact Bankstown Mental Health within seven days of release. He had not done so as of 20 November 2014. The recommendation made and agreed to was, given that Mr Konneh “appears to be unable to adapt to a normal lifestyle and the apparent risk to public safety it is recommended that his parole be revoked”.
The next admission to a corrections centre appearing in the corrections record before the Tribunal is dated 1 April 2015. It appears that the recommendation made on 20 November 2014 was not followed. There are health records from NSW Department of Corrective Services that show Mr Konneh was being dealt with by community corrections centres and was being assisted by Shopfront Legal Centre on 26 November 2014. There is then no record until 9 March 2015 when there is correspondence about complaints about Mr Konneh going into the girls’ toilets at TAFE on two occasions. Another record dated 9 March 2015 refers to a telephone conversation with Ms Mayoh from Mission Australia, who gave evidence before the Tribunal. The 9 March 2015 report states that Ms Mayoh said that Mr Konneh’s “tenancy was going to the courts due to his failures to behave appropriately at the residence (with complaints, dumping rubbish around the car park etc). Clare stated that Musa did not seem to recognise the issues in his behaviour and his case was going to be reviewed in approximately a month’s time.” The note states that community corrections could not reveal Mr Konneh’s offending history to Ms Mayoh because of privacy issues.
In a Breach of Parole report dated 14 March 2015, the following recommendation was made:
Despite some level of compliance with his parole order, Mr Konneh’s increasingly concerning and inappropriate behaviours have resulted in his expulsion from studies and possible eviction from supported accommodation should his current behaviours continue.
Mr Konneh has been assessed in the past week as being at very high risk of sexual reoffending and, because of his intellectual limitations and mental illness he is not able to engage in specific sex offender intervention. While Mental Health and Mission Australia staff have implemented risk management plans to enhance staff safety, it is now at the stage where Corrections has little if any ability to manage Mr Konneh’s risk to the general community, when not under strict surveillance or supervision.
THE APPLICANT’S MENTAL HEALTH HISTORY
There is a substantial volume of evidence before the Tribunal which refers to Mr Konneh’s mental health. They include:
·corrections records;
·records from the health provider in the immigration detention centres he has been in;
·Justice Health records dated 26 to 29 January 2013;
·reports prepared by Dr Nielssen, psychiatrist, dated 28 November 2013, 12 March 2014, and 19 April 2017 and his oral evidence;
·reports by Dr Allnutt, forensic psychiatrist, dated 10 July 2014, Mr Howard, psychologist, dated 14 March 2013, Professor Greenberg, psychiatrist, dated 12 March 2013; and
·a Forensic Community Treatment Order dated 28 August 2014.
The first reference by a doctor to a possible mental health condition is that of Dr Cook on 28 July 2011. That is contained in a detailed history set out in the report of Professor Greenberg, Forensic Psychiatrist, dated 12 March 2013, who had reviewed Mr Konneh’s lengthy medical record at Justice and Forensic Mental Health. Dr Cook queried that Mr Konneh had “prodromal psychosis” and noted a history of cannabis usage. Dr Cook noted that Mr Konneh was treated with Seroquel antipsychotic medication.
Professor Greenberg described Mr Konneh as “a diagnostic dilemma” and stated that further information and psychiatric assessment was necessary. His provisional diagnosis was Axis I: Psychotic Disorder (Query Schizophrenic Disorder) and Axis II: Cannabis and Alcohol Abuse Disorder, Personality Defer Diagnosis.
Dr Nielssen interviewed Mr Konneh most recently by telephone on 19 April 2017. He confirmed that his diagnosis was:
1. Chronic, partly treatment resistant schizophrenia
2. Substance use disorder, in remission.
Dr Nielssen told the Tribunal that Mr Konneh has a more severe form of schizophrenia which medication mitigates but does not treat the underlying cause. It maintains some level of social function. Dr Nielssen was unable to say whether Mr Konneh’s declining to participate in the proceedings was consistent with his illness. Dr Nielssen said that Mr Konneh was pleased to speak with him and was co-operative.
The Tribunal accepts Dr Nielssen’s opinion is that, notwithstanding apparent improvement, Mr Konneh’s illness is likely to remain quite disabling, with impaired self-awareness, social judgment, planning, decision-making and impulse control.
The evidence includes a psychologist’s opinion that Mr Konneh’s IQ is in the “lower extreme range”. Dr Nielssen’s opinion was that Mr Konneh’s “pre-morbid intelligence was estimated to be in the normal range”, that suggests that his “sub normal intelligence” was “almost certainly secondary to the intellectual impairment associated with unremitting schizophrenia”.
The characteristics Dr Nielssen identified, as set out in paragraph 32, are manifest in the 11 major and 40 minor incidents in which Mr Konneh has been involved while in detention, while he has been supervised and medicated.
A report entitled “Pre-Sentence Consultation” dated 23 January 2013 was prepared by a forensic psychologist following Mr Konneh’s convictions for the two offences of Commit act of indecency with person 16 years or over. She noted that Mr Konneh had recently displayed sexually inappropriate behaviour during interviews with both police and Probation and Parole staff and commented: “It is possible his behaviour could be the result of mental health issues and/or drug and alcohol use”. She noted that he was housed in the Mental Health Screening unit of the MRRC and observed: “It would appear from his current housing location that he is awaiting psychiatric assessment.”
PRIMARY CONSIDERATIONS
Protection of the Australian Community
It was conceded by Mr Konneh’s legal representatives that the reckless wounding offence was very serious and resulted in significant injury to another individual but it was argued that Mr Konneh’s conduct must be viewed in the context of his serious mental illness and he was “in all likelihood, acutely psychotic at the time of the offence”.
Judge Sides made the following comments during the sentencing hearing.
Mr Konneh pleaded guilty at the first opportunity when issues surrounding his fitness were resolved, for which a 25% discount was given. His Honour had significant reservations about whether Mr Konneh was genuinely remorseful based on comments that Mr Konneh had made to Dr Allnutt in May 2014. Mr Konneh and the victim lived in the same complex of units located on different floors. Mr Konneh regularly asked neighbours for cigarettes which annoyed the victim and two of the other people present. Sometime between 4:30 and 5 pm, Mr Konneh opened the screen door of his unit as the victim was visiting a unit opposite that owned by Mr Konneh, and swore at and threatened to kill the victim. The victim replied, telling Mr Konneh to close the door and shut up and asked him why he was giving him trouble, emphasising that he had done nothing to Mr Konneh. Mr Konneh replied by telling the victim to get fucked and slammed his door. At about 6 pm, a neighbour saw Mr Konneh outside his unit muttering while holding a bottle of Vodka Cruiser.
At about 9 pm the victim answered a knock at his door to find a former female resident there and Mr Konneh standing a couple of meters away. The victim could smell intoxicating liquor on Mr Konneh. The woman told the victim that Mr Konneh had been harassing her. The victim told Mr Konneh he was drunk and to go home.
At about 2 am on 14 September 2013, the victim went for a walk around the unit complex and met Mr Konneh in the communal courtyard. They exchanged accusations. A neighbour became concerned and another neighbour told the victim to go back to his unit. Mr Konneh continued to yell at the victim. Sometime later, Konneh knocked on the door to that unit and asked for a cigarette which was provided. The victim left the unit and walked by Mr Konneh who was nearby on the communal balcony. Mr Konneh repeatedly punched the victim’s head. The victim raised his hands to protect his head and turned his back to Mr Konneh who then reached down with his hands and pulled out half a pair of scissors and stabbed the victim numerous times in his back, torso and side. The victim then turned towards Mr Konneh who took a swing and stabbed the victim in the face. The victim then grabbed a chair and took a wrench from his back pocket. Mr Konneh backed away. An ambulance attended at 4:30 am and took the victim to hospital where he was treated for his injuries. He sustained nine stab wounds:
·a full thickness laceration flap to the left cheek and lower lip requiring cleaning and closure under general anaesthetic;
·six stab wounds to the back, including the left scapula, right scapula, lower right thoracic area of the back, left flank, left lumbosacral back and left anterior axilla;
·a single stab wound to the right upper quadrant of the abdomen; and
·a large right-sided pneumothorax associated with partial collapse of the right lung requiring a chest drain to be put in place.

The victim was discharged from hospital three days later on 17 September 2013 into the care of his GP. One of the injuries was near the kidney and with greater penetration was potentially damaging to the kidney. His Honour was satisfied that there was probable permanent visual disfigurement of the victim’s cheek and lip area but there was no evidence of any permanent disability.
Mr Konneh gave inconsistent accounts of the offence. He denied any involvement during the police interview and when he spoke to Dr Nielssen on 6 November 2013 and 24 February 2014. He told Dr Allnutt on 27 May 2014 that he left his unit to stab the victim but also that he only wanted to threaten the victim. He also told Dr Allnutt that he had acted in self-defence, which the court did not accept.
Mr Konneh had a substance abuse problem that started at an early age. He provided a history of consuming excessive quantities of wine and cannabis on a daily basis. There was no evidence that he had participated in any program to address his substance abuse issues while in custody. He was on parole at the time of his reckless wounding offence for the acts of indecency offences, and called up in relation to breaching bonds imposed in relation to other offences, as set out above.
The court preferred the opinion of Dr Allnutt to that of Dr Nielssen because Dr Allnutt was able to obtain a history of the circumstances surrounding the offence. The court was satisfied that at the time of the offence Mr Konneh was suffering from paranoid schizophrenia. The court accepted that whilst Mr Konneh had an appreciation of the nature of his conduct, because of his poor mental health at that time, he was experiencing auditory hallucinations and persecutory beliefs of a delusional nature that impaired his capacity to apply rational reasoning to what he believed the victim was doing to him. That impairment of capacity was exacerbated by consumption of drugs and liquor. Mr Konneh was aware of the adverse impact of consumption of alcohol and liquor on his mental health.
Finally, Judge Sides commented that the carer from the Mental Health Review Tribunal referred to non-compliance with medication but it was not clear when the applicant was first medicated.
The Tribunal finds that Mr Konneh has committed a very violent offence. He has also committed sexual crimes. The Tribunal accepts that the custodial sentences imposed for those crimes reflect their seriousness. The Tribunal finds that the applicant’s offending has increased in seriousness. Although Mr Konneh has been involved in what have been described by the immigration detention provider as 11 major incidents and 40 minor incidents, the evidence does not show that he has been charged. The evidence includes details of each of those 51 incidents which began on 27 December 2015. The most recent incident recorded was on 18 January 2017. Mr Konneh entered immigration detention on 18 December 2015. The Tribunal accepts that the conditions of detention may affect Mr Konneh so that the features of his mental illness are expressed in behaviour resulting in the 51 recorded incidents.
The Tribunal does not consider that Mr Konneh’s chronic mental illness is a mitigating circumstance in relation to his criminal history as his representatives seemed to argue. That argument relies on Mr Konneh being adequately supported in the community when he is released so that he is compliant with his medication which would reduce the risk of his reoffending to an acceptable level.
Mr Konneh’s representatives set out in detail his history of being placed on a Forensic Community Treatment Order on 28 August 2014 before he was released on parole, its conversion to a Community Treatment Order (CTO) on release, and the legal consequences under the Mental Health Act 2007 (NSW). The submission was made that a CTO patient “typically receives long-acting medication visa injection which reduces the risk of non-compliance associated with taking daily oral medication” and “allows swift action to be taken in the event of non-compliance”. Further, it was submitted that ““given his past non-compliance” with treatment”, Mr Konneh “may be a suitable candidate for a further CTO, and a member of his treatment team may apply to the Mental Health Review Tribunal for a CTO if warranted”. The Tribunal is not persuaded that such a regime sufficiently reduces Mr Konneh’s risk of reoffending, given his history of homelessness, substance abuse, non-compliance with treatment and the incidents in which he has been involved in immigration detention, under supervision and medicated. In making that finding, the Tribunal takes into account that Mr Konneh finds the conditions in detention difficult, as he recently told Dr Nielssen.
While the Tribunal accepts that Ms Mayoh, Mr Konneh’s father, step-aunt and her son, are well-intentioned, the Tribunal does not accept that the level of support that will be available to Mr Konneh will reduce the risk of reoffending to an acceptable level.
Based on their evidence, the Tribunal does not accept that his father, step-aunt or her son accept that he is suffering from any mental illness. They have no understanding of its effect on him and his behaviour. Further, the Tribunal does not accept that they know the detail of his past criminal offending or appreciate its seriousness. The Tribunal does not accept that any of those three people would be able to accommodate Mr Konneh for any length of time if he were released into the community.
Mr Konneh’s father was very clear that he would not have Mr Konneh live with him and his family unless he had changed. He was concerned about his drinking. Mr Konneh has not lived with his father since 2007. Their relationship is difficult to say the least.
Mr Konneh last lived with his step-aunt in 2007. She thinks she can “manage” him. She thought it would only be necessary to take a week off work to help him settle in and she would have him for “maybe” a few months until he settled in. Her son believes that Mr Konneh listens to him. He planned to take Mr Konneh to work with him and would make him take his medication. Mr Konneh has not lived with him for any length of time since 2007.
The family circumstances of each of Mr Konneh’s father, step-aunt and her son, and their history with him, reinforce a finding that none of them has the capacity to support Mr Konneh to the extent they claim or to an extent that would reduce his risk of reoffending.
Ms Mayoh says in her 28 April 2017 statement that “The Crossing would use its best endeavours to implement a support plan” for Mr Konneh, which would include intensive case management, housing, mental health measures, specialist counselling to address problematic behaviour, and referral to alcohol and other drug services/counselling.
The Tribunal does not accept that Ms Mayoh’s proposed support plan reduces the risk of Mr Konneh’s offending to an acceptable level. The plan requires all the elements to be met. Mr Konneh’s history of behaviour while living in the community includes periods when he has been supported by Anglicare, Ms Mayoh at Mission Australia, and his current lawyers. That did not prevent him from offending or breaching bail. The positive account set out in the Statement of Facts and Contentions submitted on behalf of Mr Konneh, of his engagement when he had intensive support while he was in the community from 15 November 2014 until 1 April 2015 is not consistent with the outcome that he was arrested on a parole revocation warrant and returned to prison. Mr Konneh’s history to that time, and his behaviour while in detention and medicated, do not provide a basis for finding that the proposed plan will be effective in reducing the risk of his reoffending to an acceptable level.
The Tribunal accepts that Mr Konneh has not reoffended since 14 September 2013 but he has breached his bail, as set out above, and has been in detention of some kind for most of the time since then. He has also been involved in the incidents, major and minor, while in immigration detention.
The Tribunal accepts that Mr Konneh’s criminal history from 2011 to 2013 occurred against a backdrop of youth, homelessness and lack of consistent support and, in all likelihood, an emerging but not formally diagnosed or treated mental illness. That may be a prodromal phase, as described by Dr Cook, which affected his functioning. The Tribunal accepts that Mr Konneh’s behaviour at the time of the “acts of indecency” offences “may have been significantly impacted by deficits in psychological and cognitive functioning”.
However, the Tribunal finds that Mr Konneh’s chronic mental illness makes it likely that he will reoffend. Dr Nielssen also diagnosed Substance use disorder, in remission. How long that disorder will be in remission if Mr Konneh is released into the community is unknown. Given that his criminal offending became increasingly serious and his involvement in incidents in immigration detention while medicated, the Tribunal finds that Mr Konneh presents an unacceptable risk of harm to individuals in the Australian community.
The consideration weighs strongly against revoking the decision to cancel Mr Konneh’s visa.
Best interests of the child
Mr Konneh’s legal representatives did not press this consideration at the hearing. In the written submissions, it was claimed to be of limited relevance because he has two siblings and one cousin in Australia who are under the age of 18, they are not dependent on him and have had limited contact with him in recent years.
The Tribunal finds that Mr Konneh has not had any meaningful contact with any of those children since 2007. It is not persuaded on the evidence that he will have any such contact in the foreseeable future. The Tribunal gives this consideration no weight.
Expectations of the Australian community
The Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal finds that Mr Konneh has breached this trust in the past as demonstrated by his criminal history and, for the reasons given above, there is an unacceptable risk that he will breach this trust in the future.
The Tribunal has taken into account the submissions made on behalf of Mr Konneh, that the Australian community has particular expectations in respect of people who are suffering mental illnesses and in respect of our international human rights obligations. Reference was made to legislation, conventions, agreements and frameworks including the United Nations Convention on the Rights of Persons with Disabilities, the National Disability Strategy, the National Disability Advocacy Framework, the National Mental Health Strategy and the Council of Australian Governments National Action Plan on Mental Health.
Australia’s non-refoulement obligations are referred to specifically in cl 14.1 of the Direction. The United Nations Convention on the Rights of Persons with Disabilities does not give rise to a non-refoulement obligation.
While the Tribunal accepts that the Australian community has expectations in respect of people who are suffering mental illnesses and our international human rights obligations, the Tribunal finds that in this case, those matters are more appropriately considered in the context of cl 14.1 of the Direction. The arguments made on Mr Konneh’s behalf were that he would not receive treatment for his mental health condition in Sierra Leone.
Clause 14.1(2) provides that the existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. Relevantly, cl 14.1(4) provides that where a non-citizen’s claims may give rise to international non-refoulement 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. The Tribunal accepts the respondent’s submission that this is such a case. While Mr Konneh’s legal representatives argued that Mr Konneh is owed complementary protection, for reasons set out at length in both the Statement of Facts and Contentions and in the submission to the delegate, the Tribunal finds in accordance with the Direction that is unnecessary to consider whether non-refoulement obligations are owed to Mr Konneh.
Mr Konneh did not hold a Protection visa. It is only where a Protection visa is held that decision-makers should seek an assessment of Australia’s international treaty obligations because the person will be prevented from making a further application for a Protection visa, unless the Minister exercises his power under various provisions of the Act to permit an application.
Taking into account the provisions of cl 14.1 and Mr Konneh’s criminal, mental health and immigration detention history, the Tribunal does not accept that the expectations of the Australian community in relation to the treatment of people with mental illness, the treatment of people who arrive in Australia on humanitarian visas, or the rehabilitation of young offenders, outweigh the Australian community’s expectation that non-citizens obey Australian law.
In making that finding, the Tribunal has taken into account the claim that Mr Konneh was likely to be traumatised and vulnerable because he came to Australia on a humanitarian visa when he was 15. The evidence shows that he left Sierra Leone, where there was a civil war, when he was about five or six, and went to Guinea. He was not exposed to a civil war after he left Sierra Leone, although the conditions in Guinea may not have been easy.
The Tribunal does not accept the submission that Mr Konneh’s youth and immaturity require that he be dealt with in a manner that promotes his rehabilitation. The Tribunal does not accept that the medical evidence about his mental health, including that of Dr Nielssen, supports such a submission. Dr Nielssen’s opinion was the Mr Konneh’s condition was treatment resistant and that schizophrenia “is in effect a neuropathy affecting the frontal lobes of the brain”. Dr Nielssen accepted that there was an above average probability of Mr Konneh reoffending and committing a serious offence.
The Tribunal finds that the expectations of the Australian community weigh strongly in favour of non-revocation of the visa cancellation decision.
OTHER CONSIDERATIONS
International non-refoulement obligations
The Tribunal has addressed this consideration in the previous section.
Strength, nature and duration of ties
The Tribunal accepts that Mr Konneh has spent 10 years living in Australia. He is now 25 years of age. For about three years after he left his family’s home in 2007, he did not get into trouble with the law or apparently suffer mental health issues. His history in the following eight years is set out above.
He has ties in Australia including with his father, step mother and three step-siblings, a step-aunt, and her family, including her son. The Tribunal has addressed the support expressed by his father, step-aunt and her son. For the reasons give above, the Tribunal does not accept that that support would be provided for any length of time if Mr Konneh were released into the community.
While Mr Konneh has those ties, the Tribunal does not consider that they are strong, because they will not withstand prolonged exposure to Mr Konneh’s behaviour as a consequence of his mental illness, as described by Dr Nielssen. There is also the issue of his substance abuse. While it has been in “remission” while he has been in prison and immigration detention, his past behaviour does not engender confidence that “remission” would continue upon release into the community. In making that finding, the Tribunal has taken into account the planned support in evidence before the Tribunal.
Mr Konneh’s relatives may suffer some distress if Mr Konneh returned to Sierra Leone, but that has to be viewed in light of his having to leave his step-aunt’s home in 2007 because of his conduct, the distress he has caused his father while in Australia, and the little contact that there has been between Mr Konneh and his family members since 2007.
This consideration weighs somewhat in favour of revocation of the visa cancellation decision.
Impact on Australian business interests
The consideration “Impact on Australian business interests” is not relevant.
Impact on victims
As conceded by his legal representatives, Mr Konneh caused serious injury to the victim of the reckless wounding offence (the victim). Details of those injuries and the victim’s hospitalisation are set out earlier in this decision. The Tribunal accepts that there is no evidence of any further contact with or threat made to the victim. There is no evidence that Mr Konneh continues to hold persecutory delusions about the victim.
This consideration weighs in favour of non-revocation of the visa cancellation decision.
Extent of impediments if removed
Mr Konneh’s mental health is the main impediment to his removal from Australia to Sierra Leone because of the lack of mental health treatment and the social stigma surrounding mental illness in that country. That the members of his family do not accept that he has such an illness reflects that stigma.
The Tribunal accepts that Mr Konneh will have difficulty adjusting to life in Sierra Leone. The Tribunal accepts that Mr Konneh learned English in Australia and uses English in his daily life. His father speaks to him in Krio.
His grandfather lives in Sierra Leone, however Mr Konneh does not know him well. It is not clear to the Tribunal that other family members live there. There are some other family members in Guinea. The Tribunal accepts that Mr Konneh’s father sends money to his father and would send money to Mr Konneh if he returned. However, Mr Konneh’s father is not a man of significant means and he has significant financial responsibilities, particularly to his three children, two of whom attend private schools. Mr Konneh’s step-mother works as a cleaner.
The Tribunal accepts that Mr Konneh has few skills to gain employment. His employment history in Australia is negligible. The Tribunal accepts that in Sierra Leone, there are few work opportunities for people with a mental health disability and that begging has been found to be common. The Tribunal accepts that there is a lack of social, medical and economic support for Mr Konneh in Sierra Leone.
The Tribunal accepts Mr Konneh’s father’s evidence that his son would be better off in Australia if he committed criminal offences than if he did so in Sierra Leone.
The Tribunal gives no weight to Mr Konneh’s expressed wish to return to Sierra Leone. It does not accept that that is a reasoned decision based on knowledge of the conditions there.
The Tribunals finds that this consideration weighs strongly in favour of revocation of the visa cancellation decision.
CONCLUSION
Taking all the above matters into account, the Tribunal finds that the considerations favouring non-revocation of the decision to cancel Mr Konneh’s visa outweigh considerations that favour revocation.
DECISION
The Tribunal affirms the decision made on 6 March 2017 by a delegate of the Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant’s visa.

I certify that the preceding 89 (eighty -nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

......................................[sgd]..................................
Associate
Dated: 26 May 2017

Date(s) of hearing: 10 May 2017

Solicitors for the Applicant: The Shopfront Youth Legal Centre

Solicitors for the Respondent: Australian Government Solicitor

[2017] AATA 773

26 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Date(s) of hearing:	10 May 2017
Solicitors for the Applicant:	The Shopfront Youth Legal Centre
Solicitors for the Respondent:	Australian Government Solicitor