LKQD and Minister for Immigration and Border Protection (Migration)
[2018] AATA 2710
•9 August 2018
LKQD and Minister for Immigration and Border Protection (Migration) [2018] AATA 2710 (9 August 2018)
Division:GENERAL DIVISION
File Number: 2017/5056
Re:LKQD
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member L M Gallagher
Date:9 August 2018
Place:Perth
The decision under review is affirmed.
....[sgd]....................................................................
Member L M Gallagher
CATCHWORDS
MIGRATION – refusal to grant protection visa – failure to meet criterion in s 36(1C) of Migration Act – whether applicant is a danger to the Australian community – decision under review affirmed
LEGISLATION
Criminal Code Act Compilation Act 1913 (WA) – s 301
Disability Discrimination Act 1992 (Cth) – s 29
Migration Act 1958 (Cth) – s 5 – s 5H – s 5M – s 29 – s 36 – s 36(1A) – s 36(1C) – s 36(1C)(b) – s 36(2C)(a) – s 36(2C)(b)(ii) – s 36(2)(aa) – s 65 – s 65(1)(a)(ii) – s 499 – s 500(1)(c)(i) – s 501(1) – s 501(6)(d)(v)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload) Act 2014 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload) Bill 2014 (Cth)
CASES
A v Minister for Immigration and Multicultural Affairs [1999] FCA 227
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
Minister for Immigration and Ethnic Affairs and Teoh (1995) 183 CLR 273
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577; [2013] HCA 12
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WKCG v Minister for Immigration and Citizenship [2009] AATA 512
SECONDARY MATERIALS
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) – Art 33
Minister for Immigration and Border Protection, Direction No. 65 – Migration act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 22 December 2014
Minister for Immigration and Border Protection, Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b), 6 September 2017
United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, UNTS 1577 (entered into force 2 September 1990)
REASONS FOR DECISION
Member L M Gallagher
9 August 2018
INTRODUCTION
On 17 August 2017, a delegate of the Minister for Immigration and Border Protection (“the Respondent”) made a decision under section 65 of the Migration Act 1958 (Cth) (“the Act”) to refuse to grant LKQD[1] (“the Applicant”) a Protection (subclass 866) visa (“the protection visa”) (T2, page 11).
[1] The Applicant’s name has been suppressed as a result of an automatic confidentiality order pursuant to s 501K of the Act. Any references appearing in square brackets indicate information that has been removed from this decision and replaced with generic information so as not to identify individuals involved.
In its decision dated 17 August 2017, the Respondent’s delegate was satisfied that the Applicant is a “refugee” as defined by section 5H of the Act and that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to South Sudan, there is a real risk that the Applicant will suffer significant harm (T2, page 18).
However, in its decision dated 17 August 2017, the Respondent’s delegate was not satisfied that the Applicant met the criterion in section 36(1C)(b) of the Act for a protection visa (T2, pages 11 and 40). The Respondent’s delegate also found that, given subsection 36(2C)(b)(ii) of the Act, the Applicant is taken not to satisfy the criterion at subsection 36(2)(aa) of the Act (T2, page 40).[2] In each case the Respondent’s delegate found that the Applicant, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
[2] The Minister’s decision appears to incorrectly refer to subsection 36(2C)(a) of the Act and should instead refer to subsection 36(2C)(b)(ii) of the Act.
On 23 August 2017, the Applicant applied to this Tribunal for review of that decision (T1).
CLAIM AND IMMIGRATION HISTORY
The Applicant was previously a citizen of what is now South Sudan, but was assessed by the Respondent’s delegate as stateless (T2, page 17). The Applicant is currently 39 years old. The Applicant first entered Australia on 4 May 2004 as the holder of a Refugee visa subclass XB-200 (the “refugee visa”) (T4, page 291).
The Respondent’s decision to refuse the Applicant a protection visa follows an earlier decision to cancel the Applicant’s refugee visa.
The Applicant’s claim history and immigration history is set out as follows:
Date
Event
Source
4 May 2004
The Applicant arrived in Australia on the refugee visa.
T4, page 291
18 September 2007
The Applicant was warned that any further criminal convictions could result in his refugee visa being considered for cancellation.
T4, pages 297 and 298
4 July 2011
The Applicant was notified of a decision not to cancel his refugee visa under s 501 of the Act (formal warning).
T4, pages 295 and 296
16 July 2013
The Applicant was notified of a decision not to cancel his refugee visa under s 501 of the Act (formal warning).
T4, page 292 to 294
11 February 2015
The Applicant was notified that his refugee visa was cancelled by a delegate of the Respondent under s 501(3A) of the Act.
T4, page 306 to 308
25 February 2015
The Applicant sought revocation of the decision to cancel his refugee visa.
T4, page 50
31 May 2016
The Applicant was recorded as having been released from prison and transferred to immigration detention.
T4, page 232
23 January 2017
The Assistant Minister decided not to revoke the decision to cancel the Applicant’s refugee visa.
T4, page 62
24 February 2017
The Applicant applied for a protection visa.
T5, pages 349 to 395
17 August 2017
A delegate of the Respondent decided to refuse to grant the Applicant a protection visa.
T2, page 11
23 August 2017
The Applicant applied to this Tribunal for review of the decision dated 17 August 2017.
T1
AGREED BACKGROUND FACTS
The parties agree on the following facts concerning the Applicant’s background and the Applicant’s relationship with his son (refer to paragraph 9 of the Respondent’s Statement of Facts, Issues and Contentions (“SFICs”) dated 20 October 2017, as extracted from paragraphs 6 to 9 (inclusive) and paragraphs 20 and 21 of the Applicant’s SFICs dated 6 October 2017):
6.The Applicant has a particularly traumatic background. It is difficult to summarise these events. In 1993, at age 14 the Applicant fled the conflict in South Sudan, in doing so he was separated from his family, community and culture. He first fled to a Red Cross camp and then to a catholic [sic] school and orphanage in North Sudan.
7.After some time he spoke out publically about his experiences in South Sudan and he came to the attention of the North Sudanese intelligence Agency. They kidnapped and detained him. He was repeatedly tortured and beaten by the North Sudanese. They used bottles to rape him and told him that he was “now theirs” and had to do what they asked him.
8.They finally released him on the understanding that he would spy on the Bishop for them. He told the Bishop, who then helped him flee Sudan. He went to Egypt where the UNHCR found him to be a refugee. Then in 2004, he was accepted for resettlement in Australia (T5, page 388) [sic]. As part of any resettlement process to Australia the Applicant’s character would have been considered. He was assessed to have no character concerns and was granted a visa by the Respondent.
...
9.The Applicant arrived in Australia on a Refugee Visa subclass XB-200 on 4 May 2004. For the first two years of his life in Australia he has no offending record.
…
20.The Applicant has a young son… who lives with his mother... [the Applicant’s son] is an Australian citizen…
21.[The Applicant’s son] has always had a strong relationship with the Applicant, and visits him at the [immigration detention centre] whenever possible. In between visits, they speak often on the phone. While the romantic relationship between [the Applicant’s son’s mother] and the Applicant has broken down, [the Applicant’s son’s mother] and the Applicant both intend for the Applicant to play an active role in the life of their son…
HISTORY OF APPLICANT’S OFFENDING AND HEALTH MATTERS
April 2005 to December 2013
The Applicant’s history of offending for the period April 2005 to 1 December 2013 is recorded in the National Police Certificate (T4, pages 84 to 90). The Applicant’s National Police Certificate records over 100 offences, several of which were violent. The National Police Certificate is extracted at Appendix 1 of this decision.
The National Police Certificate shows that the Applicant was sentenced to terms of imprisonment on a number of occasions from April 2005 to November 2014, including a term of imprisonment of 30 months for “unlawful wounding” and “unlawfully wounded in circumstances of aggravation” for conduct that took place on 1 December 2013, sentencing date 27 November 2014 (T4, page 84 and T4, pages 244 and 251). The Applicant was remanded in custody on 2 December 2013 (T4, page 188).
The chronology of events regarding the Applicant’s offending conduct that took place on 1 December 2013 is summarised as follows (refer to, for example, T4, pages 245 and 246):
(a)the Applicant argued with [the Applicant’s son’s mother]. [The Applicant’s son’s mother] turned her back to the Applicant and he threw a mug at the back of her head. The mug broke and [the Applicant’s son’s mother] suffered lacerations to the back of her head that required hospital treatment; and
(b)the Applicant then went to a nearby shopping centre and came across [the victim] in a carpark, who was someone that the Applicant did not know. The Applicant punched [the victim] in the face with his fist. [The victim] stumbled and the Applicant stabbed him in the shoulder with a knife causing a puncture wound. [The victim] was taken to hospital and the Applicant was arrested at the scene.
January 2014 to present
The Applicant’s history of offending and of matters regarding his mental health for the period January 2014 to the present are as follows:
Date
Event
Source
January 2014
The Applicant was commenced on oral antipsychotic medication and was admitted to the Frankland Centre. The Applicant was diagnosed with paranoid schizophrenia.
T4, page 178
February 2014
The Applicant was admitted to the Frankland Centre for a second time. During this admission the Applicant was commenced on Zuclopenthixol Deconoate depot.
T4, page 178
13 March 2014
The Applicant was released from custody for two days.
T4, page 188
13 March 2014
The Applicant was admitted to the Frankland Centre for a third time when he was referred on a hospital order. The Applicant was, at the time, having ongoing features of psychotic symptoms and ongoing persecutory ideation.
T4, page 178
4 July 2014
The Applicant pleaded guilty in relation to the charge of “unlawfully wounded in circumstances of aggravation.” The Perth Magistrates Court requested a pre-sentence report for 22 September 2014.
T4, page 189 and page 248
17 September 2014
The pre-sentence report was given this date.
T4, pages 185 to 188
22 September 2014
The Applicant was heard in the Perth Magistrates Court in relation to charges for “unlawful wounding,” “unlawfully wounded in circumstances of aggravation,” “common assault,” “attempted stealing from person of another,” “breach of police order,” “aggravated burglary and commit offence in dwelling” and “stealing.” The Perth Magistrates Court requested a further pre-sentence report and a psychiatric report.
T4, page 189
28 October 2014
The psychiatric report was given this date.
T4, pages 175 to 184
31 October 2014
The second pre-sentence report (addendum to psychiatric report) was given this date.
T4, pages 189 to 191
27 November 2014
The Applicant was sentenced to 30 months imprisonment for the “unlawful wounding” and “unlawfully wounded in circumstances of aggravation” offences.
T4, pages 244 to 251
2 January 2015
The parole review report was given this date.
T4, page 198 to 204
30 January 2015
The Applicant’s parole assessment took place and the related report was endorsed.
T4, pages 192 to 197
February 2015
The Applicant was reported to have declined his risperidone depot on this date while in prison.
T4, page 232
March 2016
The Applicant was reported to have developed formal thought disorder, persecutory delusions about various systems of authority and poor sleep around this time.
T4, page 232
12 May 2016 to 21 May 2016
The Applicant was reported to have been admitted to the Frankland Centre during this period but having been discharged early due to “bed pressure.”
T4, page 232
23 May 2016
The Applicant was reported as having been reviewed by a prison psychiatrist on this date and was assessed as having partially treated schizophrenia.
T4, page 232
31 May 2016
The Applicant was reported as having been released from prison on this date and transferred to [an immigration detention centre], his refugee visa having been revoked subsequent to his imprisonment.
T4, page 232
1 June 2016
The Applicant was referred to ASeTTS[3] for torture and trauma counselling.
T4, page 439
3 June 2016
The Applicant was reported as having been referred as an involuntary patient to Bentley Mental Health Hospital for psychiatrist review, where he was admitted for ten days and then discharged on 14 June 2016.
T4, page 232
23 June 2016
The Applicant attended his first counselling session with the ASeTTS.
T10, page 439
28 June 2016
The Applicant was reported to have been referred as an involuntary patient to the Mental Health Unit at St John of God Hospital in Midland having had a relapse of his psychosis. He was discharged on 4 July 2016.
T4, page 233
9 July 2016
The Applicant was reported to have been referred as an involuntary patient to the Mental Health Unit at St John of God Hospital in Midland following an incident where the Applicant threw a television to smash the office window where a female SERCO Officer was sitting. He was discharged on 19 July 2016.
T4, page 232
R2, ST4, pages 455 and 457
July 2016 to October 2016
The Applicant attended consultations with two psychiatrists.
T4, pages 326 to 331
21 April 2017
The Applicant was reported to have been referred to St John of God Hospital in Midland for psychiatric assessment in the emergency department following agitation, non-compliance with medication and impaired insight of his condition. The Applicant was discharged on 22 April 2017 and his medications were adjusted.
R2, ST6, page 462 and R2, ST9, page 468
24 April 2017
The Applicant was reported to have refused to take his prescribed medication.
R2, ST7, page 464
12 May 2017
The Applicant was reviewed by an International Health and Medical Services’ (“IHMS”) Psychiatrist, who documented that the Applicant lacks insight into his illness and is indicating that he wants to discontinue his medication. The Psychiatrist documented that “[g]iven his past history of hospital admissions, it is highly likely that he will eventually relapse when he discontinues medication, however it is “uncertain how long before that happens.”
R2, ST9, page 468
15 May 2017
The Applicant is recorded to have discontinued his prescribed medication until 24 May 2017.
R2, ST8, page 465
3 June 2017
The Applicant is reported to have been referred as an involuntary patient at Bentley Mental Health Hospital. The Applicant was transferred to St John of God Hospital in Midland on 10 June 2017 following a decompensation in his mental state. The IHMS report dated 10 June 2017 states that on that date, the Applicant picked up a log of wood from the outside area and attempted to hit officers without any known trigger. The report states that currently, the Applicant presents as a significant risk to self and others and that he continues to refuse his regular and PRN medications. The Applicant was discharged on 14 June 2017 and is reported to have refused to take his prescribed medication.
R2, ST2, page 452
R2, ST10, page 470 and 471
R2, ST12, page 474
R2, ST13, page 475
14 June 2017
The Applicant commenced on a Community Treatment Order (“CTO”), recorded to end on 13 September 2017.
2nd ST1, page 450
2nd ST2, page 466
22 June 2017
The Applicant was admitted to Graylands Hospital. The Hospital records state that “currently relapsed due to non-compliance with oral antipsychotic medication.” The Applicant was discharged on 30 June 2017 on a new, second CTO, with an end date of 29 September 2017.
R2, ST14, page 477
2nd ST2, pages 456 and 470
1 July 2017
The Applicant refused to take his prescribed medication until 9 July 2017.
R2, ST17, page 482
27 July 2017
The Applicant was reported to have been involved in a fight at the immigration detention centre with another detainee.
R4b
25 August 2017
A Bentley Mental Health Service Psychiatrist referred the Applicant to Royal Perth Hospital emergency department for review. The reviewing psychiatrist reported that the Applicant does suffer from a schizophrenic illness which requires medication and careful monitoring.
2nd ST2, pages 477 and 478
30 August 2017
The Applicant was transferred to Royal Perth Hospital for further assessment.
R2, ST19, page 487
18 September 2017
The Applicant was reported to have been aggressive and abusive towards detention centre staff and to have thrown a cup against the wall smashing it into several pieces.
R4b
29 September 2017
The Applicant’s second CTO was continued for a three month period expiring on 22 December 2017.
R2, ST20, page 488
2nd ST, ST1, page 459
23 October 2017
The Applicant was reported to have been transferred to another immigration detention centre, which took him out of the Bentley Mental Health Service catchment area. The Applicant was reported to continue to attend for his fortnightly injectable medication at Bentley Hospital and to also continue to only accept a reduced dosage of medication.
IHMS Health Summary dated 15 November 2017
30 November 2017
An email from the IHMS to the Department dated 22 February 2018 states that the Applicant was an inpatient at Royal Perth Hospital. The Applicant’s second, extended CTO was revoked by a doctor at Royal Perth Hospital on this date. The Applicant was discharged from Royal Perth Hospital on 12 December 2017 and placed on an IHMS mental health care plan in detention.
Respondent’s further evidence filed on 23 February 2018
13 December 2017
An email from the IHMS to the Department dated 22 February 2018 states that the Applicant was transferred to a different detention centre and refused to take his prescribed medication.
Respondent’s further evidence filed on 23 February 2018
12 February 2018
An email from the IHMS to the Department dated 22 February 2018 states that the Applicant was seen by a GP in detention and transferred from St John of God Hospital in Midland for review by a Psychiatrist. The email states that the Applicant was returned to the detention centre on the same date due to bed pressure. The Applicant is reported to have accepted one oral dose of medication on 13 February 2018 and the Applicant was admitted to St John of God Hospital in Midland as an involuntary patient on 13 February 2018. The email states that as at 22 February 2018, the Applicant remained an involuntary patient at the St John of God Hospital in Midland.
Respondent’s further evidence filed on 23 February 2018
[3] Association for Services to Torture and Trauma Survivors.
ISSUE
The Applicant accepts and the Tribunal is satisfied on the evidence that the Applicant has been convicted by a final judgment of a particularly serious crime, as defined in section 5M of the Act (refer to paragraphs 3 and 30 of the Applicant’s SFICs and to paragraph 7 of the Respondent’s SFICs dated 20 October 2017).
The sole issue before this Tribunal is whether or not the Applicant meets the criterion in subsection 36(1C)(b) of the Act.
Therefore, what remains for the Tribunal’s consideration is the issue of whether or not the Applicant is a person whom the Tribunal, standing in the shoes of a delegate of the Respondent, considers, on reasonable grounds, is a danger to the Australian community. If the Tribunal considers that the Applicant is, on reasonable grounds a danger to the Australian community, then the Applicant fails to satisfy the criteria for protection visas set out in subsection 36(1A) of the Act.
LEGISLATION AND PRINCIPLES
General
The Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or remain in Australia (section 29 of the Act).
Where a valid application for a visa is lodged, the Minister must make a decision to grant or refuse to grant the visa (section 65 of the Act). In order for the Minister to make a decision to grant the visa, the Minister must be satisfied, among other things, that the other criteria for it prescribed by the Act or the regulations have been satisfied (subsection 65(1)(a)(ii) of the Act).
The prescribed criteria for protection visas are set out in paragraph 36 of the Act, and are as follows:
36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a)both of the criteria in subsections (1B) and (1C); and
(b)at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a)is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
…
[Emphasis added]
Section 5M(a) of the Act defines “particularly serious crime” for the purposes of subsection 36(1C)(b) of the Act (as it applies in this case) as a crime that consists of the commission of a serious Australian offence.
The term “serious Australian offence” is defined in section 5 of the Act as follows:
serious Australian offence means an offence against a law in force in Australia, where:
(a)the offence:
(i)involves violence against a person; or
(ii)is a serious drug offence; or
(iii)involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.[4]
[Emphasis added]
[4] Refer to section 301 of the Criminal Code Act Compilation Act 1913 (WA) (as at 2 November 2013, the version in force at the time of the Applicant’s relevant offending conduct, refer to paragraph 11 above, for which he was convicted and sentenced on 27 November 2014) regarding the maximum terms of imprisonment for unlawful wounding in circumstances of aggravation, or in any other case.
Jurisdiction and scope of review
The Tribunal’s jurisdiction to review the present application arises from subsection 500(1)(c)(i) of the Act.
The Applicant, in paragraphs 52 to 55 of his SFICs dated 6 October 2017 and in paragraphs 8, 9, 14, 15 and 16 of his closing written submissions dated 16 March 2018, contends that the prospect of indefinite detention and the best interests of the Applicant’s son are relevant considerations in considering whether or not to grant the Applicant a protection visa. In support of these contentions, the Applicant relies upon the cases of NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 (“the NBMZ decision”), Minister for Immigration and Ethnic Affairs and Teoh (1995) 183 CLR 273 (“the Teoh decision”) and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (“the Lam decision”).
The NBMZ decision concerns the Minister’s discretionary power under subsection 501(1) of the Act to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The Tribunal is of the view that there is no basis for the Minister’s discretionary power in subsection 501(1) of the Act to have any application whatsoever to the Minister’s power to grant or refuse a protection visa under section 65 of the Act, which by its wording “must be satisfied” and is not a discretionary power. Put another way, the Tribunal considers that the relevant power in the NBMZ decision was discretionary, which is the not the case in the present application.
The Teoh decision (and the Lam decision) concerns the legitimate expectation of the visa holder (to which the United Nations Convention on the Rights of the Child gave rise)[5] that the Australian government would consider the best interests of his children when considering whether to grant or refuse resident status.
[5] United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, UNTS 1577 (entered into force 2 September 1990) (“Convention on the Rights of the Child”).
The decision before this Tribunal refused the Applicant’s application for a protection visa on the basis that the Respondent’s delegate was not satisfied that the Applicant met the criterion in subsection 36(1C)(b) of the Act. The criterion in subsection 36(1C)(b) of the Act makes no reference to the character test in section 501 of the Act or to any legitimate expectation that a visa applicant may or may not hold.
Therefore, the Tribunal has no jurisdiction in the present application to consider matters relating to the character test in section 501 of the Act (or indeed, any of the ancillary considerations set out in Direction No. 65)[6] or to the legitimate expectation arising from the United Nations Convention on the Rights of the Child. Rather, the Tribunal notes that there exists no policy document or guidelines to inform it regarding its determination of what constitutes “a danger” to the Australian community.
[6] Minister for Immigration and Border Protection, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014.
The matters addressed at paragraphs 21 to 26 above form the basis of the Tribunal’s position that any contentions as to the ramifications and impacts of refusing the Applicant the protection visa cannot be the focal point of the Tribunal’s consideration. These ramifications and impacts can only, as with any matter put to the Tribunal for consideration, serve to inform the Tribunal’s assessment of whether the Applicant will be a danger to the Australian community.
The criteria in section 36(1C) of the Migration Act
Subsection 36(1C) of the Act (extracted at paragraph 18 above) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload) Act 2014 (Cth) (the “Amending Act”) and applies to protection visa applications made on or after 16 December 2014. The Explanatory Memorandum for this Bill[7] that introduced subsection 36(1C) of the Act relevantly states:
1236. New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention[8] which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention. As such, a person who is captured by new subsection 36(1C) will not engage Australia’s non-refoulement obligations under the Refugees Convention or for the purposes of the new statutory framework relating to refugees.
1237. A person who is captured by new subsection 36(1C) will not be eligible for the grant of a protection visa.
[Emphasis added]
[7] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload) Bill 2014.
[8] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (“Refugees Convention”) (as amended by the Protocol Relating to the Status of Refugees 1967).
Article 33 of the Refugees Convention states:
1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2.The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to that community.
[Emphasis added]
On 6 September 2017, the Minister issued a direction, “Direction no. 75 - Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2c)(b)” (“Direction No. 75”) under section 499 of the Act.[9] Part 2 of Direction No. 75 states that:
5.The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).
[Emphasis added]
[9] Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance of those functions; or (b) the exercise of those powers. Such directions may not be inconsistent with the Act (subsection 499(2) of the Act) and a person or body must comply with a direction issued under section 499(1) of the Act (subsection 499(2A) of the Act).
In considering whether a refugee constitutes a “danger to the community,” the Refugee Law Guidelines state at page 168 that this “…involves more than a reference to the crime committed by that person and should be assessed on a case-by-case basis” (A v Minister for Immigration and Multicultural Affairs [1999] FCA 227).
The Refugee Law Guidelines at pages 168 and 169 go on to cite the relevant case law, including:
·WKCG v Minister for Immigration and Citizenship [2009] AATA 512 (“the WKCG decision”); and
·SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 (“the SZOQQ decision”),
which are addressed directly below under “Case principles”.
Case principles
The WKCG decision
In the WKCG decision, The Honourable Deputy President Tamberlin QC set out some relevant considerations for assessing whether a person constitutes a danger to the community of Australia, including at [26]:
·the seriousness and nature of the crimes committed;
·the length of the sentence imposed;
·any mitigating or aggravating circumstances;
·the extent of the criminal history;
·the nature of the prior crimes;
·the period over which the crimes took place;
·the risk of re-offending and recidivism and the likelihood of relapsing into crime (which is a primary consideration);
·the criminal record as a whole; and
·the prospects of rehabilitation.
The Honourable Deputy President Tamberlin QC gave his view, in paragraph 29 of the WKCG decision that, as a matter of interpretation (of extrinsic material including the Second Reading speech and the relevant Explanatory Memorandum), the particular offence for which a person has been convicted does not have to be causally linked to the type of danger to the community. The Honourable Deputy President Tamberlin QC added that it is necessary to look at the person’s conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions. The Honourable Deputy President Tamberlin QC stated that while, for example, the person may have been convicted of a crime of violence, the person may later be considered to be a risk to the community in relation to drug trafficking.
The Tribunal also notes the following relevant paragraphs in the WKCG decision:
25. The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
26. …The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
27. The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:
…
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.
…
31. The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.”
[Emphasis added]
The SZOQQ decision
In the SZOQQ decision, the Full Court of the Federal Court considered Article 33(2) of the Refugees Convention and at [14], Justice Flick observed that:
If the ordinary meaning is to be given to the terms of Art 33(2), it is not considered that those terms require any consideration to be given to the risks to be faced by a person upon his return to another country. No balancing exercise is required by those terms. No question arises as to the need to take into account the proportionate risks to a claimant and the risks to the country in which refugee status is sought. The ordinary meaning of the terms of Art 33(2) simply requires an assessment to be made as to whether a person constitutes “a danger to the community of that country”. Confined to the terms of that Article, there is no occasion for the exercise of any discretion; all that is called for is a finding of fact.
[Emphasis added]
Additional case principles
The Tribunal also notes the decision of this Tribunal in BHYK and Minister for Immigration and Citizenship [2010] AATA 662 (the “BHYK decision”). The BHYK decision followed the principles in the WKCG decision and emphasised the requirement for evidence of a treatment or management plan in the context of the “risk of re-offending” consideration as follows:
53. In terms of whether there is a real or significant risk or possibility of harm to one or more members of the Australian community, we find the evidence supports a conclusion that there is such a risk and we are “comfortably satisfied” with making such a finding. On the evidence of Dr Walker, there is a high risk of BHYK reoffending. On the evidence of Dr Collins, there is a moderate risk. Her opinion is, however, in the context of there being a proper management plan in place and a supportive environment.
54. We are not satisfied from the evidence before the Tribunal that adequate arrangements of the kind contemplated by Dr Collins have been made, noting that BHYK has had no contact with his 14 children in Australia nor, apparently, with any other family members, over the past 10 years during which he has been in custody/detention. The only friend with whom he remains in regular contact is the Salvation Army chaplain in Brisbane who wrote a supporting letter to the Department faxed on 23 December 2008 setting out a four-stage plan for BHYK’s rehabilitation. We have no update on that plan and no evidence from the chaplain. Thus, we are not satisfied with present plans for the ongoing rehabilitation that BHYK would need in the Australian community.
55. While we acknowledge that the risk of recidivism tends to decline with age, and we note BHYK’s stated intention that he will not return to the use of alcohol or drugs, this is untested, and given evidence as to his sometimes being impulsive and aggressive, we find there is a real risk of his reoffending and of consequent harm to members of the Australian community.
[Emphasis added]
EVIDENCE
The matter was heard in Perth on 8 November 2017. The matter was adjourned and directions issued to give the parties the opportunity to file and serve further evidence in relation to:
(a)the revocation of the Applicant’s CTO (refer to paragraph 47 below);
(b)the Applicant’s oral evidence at hearing suggesting that the doses of medication prescribed for him at the detention centre were higher than those prescribed for him at the Bentley Clinic and the Frankland Centre (outside the detention centre environment) (refer to paragraph 77 below),
and to file and serve closing written submissions.
At hearing, the Applicant appeared in person and was represented by Ms Anna Copeland from the Southern Communities Advocacy Legal Education Services. An Arabic interpreter was present to assist the Applicant as required. The Respondent was represented by Counsel, Mr Justin Edwards. Mr Edwards was instructed by Ms Allyson Ladhams from the Australian Government Solicitor.
Evidence before the Tribunal
The Tribunal received the following evidence:
·Applicant’s SFICs dated 6 October 2017 (“A1”);
·Applicant’s List of Authorities (“A1a”);
·Report by the Applicant’s Psychiatrist dated 30 October 2017, including an email of instruction from Ms Copeland dated 16 October 2017 and Curriculum Vitae of the Applicant’s Psychiatrist (“A2”);
·Statutory declaration of the Applicant’s friend declared on 3 October 2017 and filed with the Tribunal on 1 November 2017 (“A3”);
·Statutory declaration of the Applicant declared and filed on 6 November 2017 (“A4”);
·Applicant’s reintegration plan (“A4a”);
·a 449 page set of T-Documents (T1 – T13) filed on 13 September 2017 (“R1”);
·a 40 page set of Supplementary T-Documents (ST1 – ST20) filed on 20 October 2017 (“R2”);
·Respondent’s SFICs dated 20 October 2017 (“R3”);
·Excel spreadsheet summarising the Applicant’s incidents in detention (“R4a”); and
·further incident reports during the time while the Applicant was in detention (“R4b”).
The following additional material was put before the Tribunal following the hearing. The parties filed additional evidence and submissions in accordance with the Tribunal’s directions:
·a 45 page set of Supplementary T-Documents (ST1 – ST3) filed on 2 January 2018 (referred to as “2nd ST”);
·IHMS Health Summary of the Applicant dated 15 November 2017 (filed and served by the Respondent);
·Respondent’s further evidence filed on 23 February 2018;
·Applicant’s evidence in response and written closing submissions filed on 16 March 2018;
·Respondent’s written closing submissions filed on 9 April 2018; and
·Applicant’s written closing submissions in reply dated and filed on 20 April 2018.
Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.
Documentary evidence
Applicant’s pre-sentence report dated 31 October 2014
The pre-sentence report (addendum to Psychiatric Report) by the Department of Corrective Services dated 31 October 2014 states, relevantly and in part (R1, T4, p 190):
During interview (13/10/2014) [the Applicant] continued to shift blame for his offending behaviours onto his previously unaddressed mental health issues and reported that the pharmacological interventions he had been prescribed since being remanded in custody had been assisting him to address the issue. He stated he felt like his likelihood of re-offending in the future would be reduced, so long as he remained compliant with his mental health regime. [The Applicant] demonstrated some insight into his offending behaviour and his need for ongoing support within the community to assist in building a pro-social lifestyle.
Applicant’s Community Treatment Order and treatment arrangements
The Report by a Consultant Psychiatrist from the Royal Perth Bentley Group to the Mental Health Review Board dated 19 July 2017 reported relevantly, and in part (2nd ST, ST2, page 476):
[The Applicant] is noted as having as [sic] established diagnosis of Schizophrenia (Schizoaffective Disorder needs to [sic] considered in the differential diagnosis due [sic] the significant mood component noted in some of his presentations), complicated by poor insight and frequent relapse due to non-compliance with treatment. He was noted to be using illicit substances prior to being sent to prison. [The Applicant] is noted as having a history of violent behaviour when unwell. He clearly becomes psychotic at times with thought disorder and paranoid themes common in his presentations. He lacks insight into his symptoms being evidence or [sic] a mental illness of requiring treatment and does not recognise or acknowledge his aggression or risk to others. He has already been non-compliant with oral medication following his last discharge and expressed his wish to cease depot medication. He is likely to disengage in treatment if made voluntary with risks to the safety of others if he becomes aggressive.
[Emphasis added]
Further report by a Consultant Psychiatrist from the Royal Perth Bentley Group to the Mental Health Review Board dated 13 October 2017 reported relevantly, and in part (2nd ST, ST2, page 485):
[The Applicant] does not recognise his symptoms as being those of a psychiatric illness and does not reliably report symptoms to staff, however appears to respond to his psychotic symptoms, hence the behaviour noted by staff at the detention centre. He does not recognise or acknowledge his aggression or risk to others and has been noted to be very provocative to other detainees, raising fears of risk to him, but also concerns that if he were not in the controlled environment of the detention centre he could potentially be a significant risk to others. He takes oral medications only sporadically and in lower doses than offered by staff.
[Emphasis added]
The Applicant’s reintegration plan (A4a) states, in relation to the recommended courses to address the Applicant’s anti-social behaviour:
Intention
[The Applicant] is very clear that he will not engage in anti-social behaviour. He is very clear that his situation has substantially changed in that he is now being properly treated for his mental illness and he no longer has contacts with the environment that underpinned his offending.
[The Applicant] has said that if he feels that he needs additional support he would attend a community-based program.
Implementation
[The Applicant’s] mental illness is now properly treated and managed.
The situational determinants of his offending have been eliminated, in that [the Applicant] will not return to cohabit with [his son’s mother] and her extended family. He will have a job and a home separate from that environment.
[The Applicant] can be referred to Partners in Recovery of the Alternatives to Violence program (a free, community based program for which he would be eligible).
An email from the IHMS to the Department dated 22 February 2018 addressed a number of matters regarding the revocation of the Applicant’s second CTO on 30 November 2017 and the alternative arrangements in place to treat and manage the Applicant’s mental health, as follows (relevantly and in part):
[The Applicant’s] CTO was revoked while he was an inpatient at Royal Perth Hospital (RPH). As per the attached Form 5A, the reason given by the Psychiatrist who signed the form was that [the Applicant] was no longer in need of a community treatment order.
However, on 30 November 2017 Dr [Psychiatrist] provided different reasons for cancellation of the CTO in an email communication to IHMS:
“We all agree that [the Applicant] is quite unwell and need [sic] close monitoring of his mental state. Unfortunately his care cannot be managed under community treatment order…”
An email from the Chief Psychiatrist’s office to Dr [Psychiatrist], involved the following communication:
“As we stated in a previous email the Mental Health Act 2014 (MHA14) and therefore CTOs under MHA14 are a State statute and therefore does not operate in Commonwealth territory such as Federal Detention Centres…
Section 114 of the MHA14 notes that when making an order (and when there are any changes in circumstances) a psychiatrist must be satisfied that there are suitable arrangements for a psychiatrist to supervise the order. When no such arrangements can be made the most appropriate action by the supervising psychiatrist would be to revoke the CTO. However it would also be appropriate for the Supervising Psychiatrist to contact the medical/psychiatric staff at [detention centre] to inform them that the detainee has mental illness which requires treatment which should now be provided by the contracted private provider. I don’t think there would be any value in transferring the CTO to another service who in effect would be in the same position.”
Dr [at Bentley Mental Health Service] became aware that [the Applicant] had been placed at [detention centre] (which is not Bentley’s catchment area), and this change of ‘catchment area’ appears to have precipitated his decision to revoke the order, although this is not recorded as the reason on the revocation.
Of note also, IHMS understands that Dr [Psychiatrist], in cancelling the Order, had not actually met the patient (whether he saw him at RPH while he was there for… [another matter]… would need to be checked, to confirm this). [The Applicant] had previously been under a CTO under a different Bentley Psychiatrist Dr […], to whom he was referred following his involuntary inpatient admission at Graylands Hospital. Dr […] saw [the Applicant] for outpatient management a number of times, and was the Psychiatrist responsible for his CTO at [detention centre]. However she sought to transfer his care to Dr [Psychiatrist] when [the Applicant] developed antipathy towards her…Dr [Psychiatrist] however had yet to review [the Applicant] when he took the positive action of cancelling his order…
…
…When IHMS was notified (on 4 December 2017) that [the Applicant’s] CTO had been revoked (prior to his discharge [from RPH] on 12 December 2017), a plan was documented to “refer [the Applicant] back to hospital under Form 1 and 3 if clinically required.”
On discharge from RPH [the Applicant] was transferred back to [detention centre]. On the day of discharge he was reviewed by the [detention centre] GP, who ordered his prescribed medications according to the discharge summary. He was also placed back on an IHMS mental health care plan. [The Applicant] was then transferred to [detention centre] the following day. He was reviewed by [the detention centre] mental health nurse, and refused his offered depot medication. [The Applicant] was offered but declined Psychiatrist follow up at [detention centre], stating that he preferred to return to Perth to see a Psychiatrist. His request was discussed with the [detention centre] Health Services Manager (HSM), and a referral was subsequently made by the [detention centre] GP on 29 December 2017 to the Royal Perth Psychiatric service.
[The Applicant] has subsequently received follow−up from the [detention centre] GP and the [detention centre] mental health nurse/s. His care plan has involved regular engagement with the mental health nurse that he is most therapeutically engaged with, monitoring of mental state, and encouragement to take medications as charted. [The Applicant] took oral medication as offered approximately six times over a two month period. IHMS site team also worked with Serco officers to monitor his mood and behaviour.
On 9 February 2018 [the Applicant] was noted by the mental health nurse at review to be mentally ill. He was offered voluntary referral to hospital which he declined. The nurse noted that an involuntary admission would be required. [The Applicant] was reviewed by the IHMS GP on 9 February 2018, who did not support the Mental Health nurses [sic] assessment that involuntary admission was required.
On 10 February 2018 IHMS was contacted by SERCO regarding [the Applicant]. IHMS Health Advisory Service (HAS) discussed his case with the on call Medical Director and then contacted Midland ED, who accepted his referral. However on 10 February 2018 [the Applicant] refused transfer to hospital when requested. Under WA Mental Health legislation, Mental Health Forms which commence involuntary transfer and also a form requesting Police assistance to transfer under the Mental Health Act can be done by a medical practitioner, or by a Mental Health Practitioner designated under the Act. However [the detention centre] does not have a GP on weekends. The IHMS Medical Director then on 10 February 2018 contacted the Crisis mental health service for the WA area to request assistance with commencing the process for involuntary assessment, however was advised that WA does not have a crisis service covering the Wheatbelt area afterhours, and therefore a MH practitioner was unavailable. The on call MD then contacted the Police, requesting their assistance with transfer. The on call MD was requested to send the transport forms associated with the Mental Health Act, but explained that this was not possible as no GP or MH practitioner was available, and alerted to Police to Section 156 of the WA MHA which allow Police intervention if the person is at risk. A call was logged for Police to contact the MD, however no call was received. IHMS HAS contacted [detention centre] SERCO to discuss ongoing management, and SERCO were advised to call the police directly if they felt he was a danger to himself or others. Feedback at the time was that [the Applicant] was not an immediate danger to others.
[The Applicant] was reviewed on site by the Mental Health nurse twice on 11 February 2018 (who was there contractually to administer medication only as it was a Sunday), who assessed the situation and indicated that no immediate Police intervention was required, with a plan for GP review and commencement of involuntary assessment planned for 12 February 2018. [The Applicant] accepted oral medication from the nurse that evening. [The Applicant] was seen by the [detention centre] GP on 12 February 2018, who commenced an involuntary assessment, and [the Applicant] was transferred to St John of God, Midland Hospital for review by the Psychiatrist. Although the hospital supported the need for admission, [the Applicant] was returned to the Detention centre by the hospital on 12 February 2018 as there were no beds immediately available for admission. No discussion with IHMS occurred around this. [The Applicant] again accepted one oral dose of medication on the morning of 13 February 2018, following Mental Health nurse review. IHMS followed up with the St John of God Hospital bed manager on 13 February 2018 and [the Applicant] was admitted that day as an involuntary inpatient. [The Applicant] remains an involuntary inpatient at St John of God Hospital, Midlands [sic].
Other documentary evidence
In its SFICs (R3), the Respondent brings to the Tribunal’s attention the following additional extracts from the available documentary evidence:
Pre-sentence reports and Court psychiatric report
12. There is a pre-sentence report date [sic] 17 September 2014 [T4 p185-188]. In relation to the aggravated unlawful wounding offence against [the Applicant’s ex-partner] the report notes:
In interview, [the Applicant] minimised the offending behaviour by attempting to shift blame to the victim … [the Applicant] then advised that he could not remember anything about the day, blaming such on his level of intoxication and poor mental health. [The Applicant] demonstrated no insight into his offending behaviour and avoided taking responsibility for such.
13. The pre-sentence report then addresses various other [sic] of the Applicant’s circumstances. In relation to family background the report concludes that the Applicant appear [sic] to have limited family and community support. In relation to substance abuse the report notes use of cannabis and methylamphetamines and problematic use of alcohol. It also noted a lack of insight regarding his responsibility for substance abuse. Finally, in relation to health, the report notes that the Court had not ordered a psychiatric assessment and suggests that the Court might consider one appropriate. The report recommends that the Applicant is not suitable for community based disposition. Before making this recommendation, it says [sic]
[The Applicant] has no new protective factors in place to increase his likelihood of Order compliance, appears at increased risk of re-offending against the same victim and demonstrated no victim empathy or insight into his offending. He has a significant history of violent offending.
14. There is a psychiatric report prepared for the Court dated 28 October 2014 [T4 p175-184]. It gives a provisional diagnosis of paranoid schizophrenia in partial remission and notes polysubstance abuse as another issue. The report sets out the following related opinions:
It appears that some of his offences were related to mental illness which may have been exacerbated by substance abuse.
With regards to the charge of Unlawfully Wounded in Circumstances of Aggravation involving … It would seem that his level of frustration with the situation had been building up over months if not years as result of his psychotic symptoms.
With regards to the charge of Unlawful Wounding, he assaulted the man at the shopping centre on the premise that the victim had been involved with agencies and was somehow persecuting him.
[The Applicant] clearly has mental health issues that would need to be addressed in the community to reduce his risk of reoffending.
15. Before setting out a provisional diagnosis and other opinions the psychiatric report addresses various matters. It notes the Applicant’s self-reported use of alcohol, marijuana and methylamphetamines and says [sic]
However his insight into his problems with substance abuse was only partial. He did not seem to think that alcohol or marijuana were particularly problematic for him.
In relation to risk assessment the report concludes [sic]
Overall, it is my opinion that his risk of future violence is high. This risk is likely to be lower if his mental health needs can be met and if he can abstain from substances.
16. The second pre-sentence report is dated 31 October 2014 and it refers to the psychiatric report [T4 p189-191]. The report recommends that the Applicant remains unsuitable for a community based disposition. Before making this recommendation it says [sic]
During the most recent interview with [the Applicant], he was able to better demonstrate insight into his offending when previously interviewed … However, he continues to have no new protective factors in place, in addition to his history of violent offending and of poor past compliance with Order requirements. Furthermore, the Psychiatric Report has assessed him as being at high risk of violent re-offending.
Parole assessment
17. The parole assessment dated around 30 January 2015 recommends that the Applicant is not suitable for release from prison at that time [T4 p192-197]. The assessment report addresses several release considerations. In relation to the unlawful wounding offence…the report notes that the Applicant took no personal responsibility for it and says “[the Applicant’s] lack of insight into his responsibility for his behaviour and the seriousness of his actions creates concern regarding his likelihood of similar future re-offending”. The assessment identifies relapse into substance abuse and failure to take his medication as risk factors for the Applicant.
18. Before setting out its recommendation the assessment says [sic]:
[The Applicant] continues to have outstanding criminogenic needs relating to substance abuse and violent offending. He has a significant number of past convictions for violent offending against family members, strangers and public officers, and demonstrated a lack of victim empathy and lack of insight into the seriousness of his current convictions. His past performance while subject to Order requirements has been poor and he has no identifiable protective factors in place to reduce his risk of re-offending upon release.
Request for revocation of Mandatory Visa Cancellation under s501(3A)
19. The Applicant’s request for revocation of the mandatory cancellation of his visa under s501(3A) of the Migration Act is dated 16 February 2015 [T4 p91-95]. The Applicant’s reasons for revocation include [sic]
I acknowledge I take some responsibility for my actions I caused to the Australian community and my own family who suffered as well.
In his accompanying personal details form the Applicant records that he suffers from and is being treated for schizophrenia, and includes the following statements [sic]
Now I realise the mistakes I have made with alcohol and drugs that turned me into a violent person.
If the Immigration Department will renew my visa I will turn my life around particularly for mental health issues.
[T4 p96-103].
The Applicant and his representatives provided extensive information to the Department in support of his request for revocation.
More recent psychiatric assessments
20. The letter from Dr [Psychiatrist] dated 13 July 2016 at [T4 p232-234] describes the deterioration in the Applicant’s health from around March 2016 and sets out the Applicant’s admissions to mental health units from May 2016 through to July 2016. Dr [Psychiatrist] was the Applicant’s treating Psychiatrist during his admission to St John of God PPH Midland Mental Health Unit from 9 July 2016. Dr [Psychiatrist’s] opinion was that the Applicant suffers from paranoid schizophrenia and is currently stable on long acting antipsychotics. Dr [Psychiatrist] says “[t]here is low immediate risk, but long term risks of persisting burden of mental illness and acting on his delusions if he is left untreated”. Dr [Psychiatrist] also says that the immigration detention centre is “a toxic environment that will not provide stability in his mental health at this stage” and suggests that the Applicant be considered for release to continue psychiatric treatment in the community.
21. There are consultation notes from Prof. [Psychiatrist] and Dr [Psychiatrist] in the T documents [T p326-331]. They are dated between 15 June 2016 and 26 October 2016. The notes record the Applicant’s ongoing treatment and symptoms over that period. Prof. [Psychiatrist’s] notes record that the Applicant’s insight and judgment is significantly impaired; and that he does not want to take his medication. Prof. [Psychiatrist] recommends that the Applicant be transferred for psychiatric treatment in the community and that he is not suitable to remain in detention. The reason given on one occasion is that “he is not compliant with his oral medication and it is highly unlikely that he would agree to be given depot antipsychotic injection”. Dr [Psychiatrist’s] last note dated 26 October 2016 records the Applicant as saying “I want to get off the injection” and “I don’t have a thought problem I have a stress problem”.
22. There is a note from Prof. [Psychiatrist] in the T documents dated 24 February 2017 [T10 p441]. The note is headed “Psychiatric Follow Up”. Prof. [Psychiatrist] notes that the Applicant’s insight and judgment is less impaired and says [sic]
[The Applicant] appears to be less psychotic then at the time of previous assessment. In view of this and to ensure compliance, the dose of depot antipsychotic injection reduced to 25 mg. As stated before, he is not suitable for remaining in [a detention centre] as prolonged detention in this setting has had a negative impact on his mental state. Needs to continue his psychiatric treatment in the community ASAP [sic].
23. The letter from [Counsellor/Advocate] of ASeTTS dated 29 March 2017 indicates that the Applicant started torture and trauma counselling in June 2016 and that between November 2016 and the date of the letter he had attended 16 counselling sessions [T10 p439-440].
Incidents in immigration detention
24. The letter from the Department to the Applicant date [sic] 3 November 2016 enclosed a “client incident report while in immigration detention” and invited the Applicant to comment on it [T4 p314]. The report is contained at T4, p303-305. By letter dated 9 November 2016 the Applicant commented on the incidents set out in that report [T4 p317-319]. The attached spreadsheet entitled “[the Applicant] Incident Events” records incidents in immigration detention up to 20 September 2017 [refer to R4a]. Since 3 November 2016 the Applicant has been involved in several, mostly minor, incidents of abusive and aggressive behaviour. Most recently, on 18 September the Applicant was aggressive and abusive towards staff and threw a cup against a wall breaking it, and kicked a window out of a door.
[Emphasis added to subheadings]
Oral evidence at hearing
The Applicant has made a number of written submissions in reply to the Respondent’s submissions regarding the Applicant’s mental illness (refer to the Applicant’s written submissions in reply dated 20 April 2018). The Tribunal has considered these reply submissions in their entirety and, where not addressed earlier in this decision, makes the following relevant observations and comments.
The Applicant takes issue with the Respondent’s reference to the report by a Consultant Psychiatrist from the Royal Perth Bentley Group to the Mental Health Review Board dated 19 July 2017 (extracted at paragraph 44 above), to imply that the Applicant would be non-compliant with his medication even on a CTO (Applicant’s written submissions in reply, sub-paragraph 2d). While the report referred to does state “[h]e is likely to disengage in treatment if made voluntary with risks to the safety of others if he becomes aggressive,” the Tribunal does not take the view that the Respondent has made the purported implication by referring to this report.
The Applicant makes a number of submissions regarding the Respondent linking the Applicant’s mental health to the “risk to the community” and this not being supported by the evidence. The Applicant submits that rather, there is extensive evidence that the triggering detention environment, in particular, being constantly surrounded by people in authority who exercise complete control over every aspects of his life, interferes with his ability to manage his mental health and has a negative impact on him. The Applicant submits that in the open community these environmental factors would no longer be present and that he would also have the protective factor of his friend[17] to assist his transition into the community (Applicant’s written submissions in reply, paragraphs 3 to 9).
[17] The Applicant also makes a number of submissions regarding his intentions to care for his son as being a strong protective factor. For the reasons stated at paragraphs 21 to 27 above, the Tribunal is unable to take these matters into consideration in the present application in the manner sought by the Applicant.
The Applicant submits that to extrapolate his behaviour and experiences in detention to predict his behaviour in the community is not logical and to conclude that he would be a risk if he were removed from the controlled environment of the detention centre is unfounded (Applicant’s written submissions in reply, paragraphs 4 and 5).
The Applicant notes the Respondent’s reliance on the letters of the Consultant Psychiatrist dated 19 July 2017 and 13 October 2017 (extracted at paragraphs 44 and 45 above) and that those letters were created for the purpose of persuading the Mental Health Review Board to put a CTO in place (Applicant’s written submissions in reply, paragraph 10). The Applicant submits that the author of the letters is in no way suggesting that the Applicant would continue to refuse treatment while on a CTO.
In this regard, the Tribunal notes that the Applicant’s most recent CTO was revoked on 30 November 2017, the reason given being that, under the relevant legislation, a CTO cannot operate in a Federal detention centre. The Tribunal also notes that the Applicant, having been transferred to a different detention centre, is no longer in the Bentley Mental Health Service catchment area. The evidence indicates that since his discharge from Royal Perth Hospital on 12 December 2017, he has been placed back on his IHMS mental health care plan and continues to accept his oral medication on an intermittent basis (refer to paragraph 47 above).
As such, while the Tribunal notes the Applicant’s submissions regarding his intended appropriate treatment in the community going forward (set out in paragraphs 10 to 15 of the Applicant’s written submissions in reply and largely made in the context of services provided by the Bentley Mental Health Service), the extent to which they can be taken into account is qualified by the evidence, including that summarised in paragraph 170 above. The Tribunal also notes the suitability of the Applicant’s proposed process for referral and treatment following his release must be considered in the context of the events that have transpired since the hearing (again, refer to paragraphs 46 and 47 above).
The Applicant submits in conclusion that the Respondent asserts at paragraph 99 of its written closing submissions that the likelihood of the Applicant relapsing and needing hospitalisation or a CTO to ensure he is compliant with his medication is evidence of the fact that he is a risk to the community. The Applicant submits that this conclusion is neither based in evidence nor consistent with the law.
Turning to paragraph 99 of the Respondent’s written closing submissions (extracted a paragraph 142 above), the Respondent submits in conclusion that the available materials and evidence support a future scenario that is most likely to include relapse, hospitalisation, insight limitations and non-compliance with medication, and that together, these matters indicate a corresponding risk of re-offending. The Tribunal reads this submission to be that the Respondent’s view is that it is this risk of the Applicant re-offending that presents the danger to the Australian community, not the specific instances (if any) of relapse, hospitalisation or existence of a CTO per se that present the danger. Given the issue for review the Tribunal considers it necessary to clarify this distinction.
CONCLUSION
The Applicant is a person with an extensive offending history and a significant mental health condition. The Applicant also has a particularly traumatic background and is a person whom the Respondent’s delegate found to meet the definition of a “refugee” under section 5H of the Act. However, the Respondent’s delegate was also of the view that having been convicted by final judgment of a particularly serious crime, the Applicant is, on reasonable grounds a danger to the Australian community. It is this latter finding by the Respondent’s delegate that presently stands between the Applicant and his satisfying the criteria for a protection visa.
The Tribunal’s task is to look at the Applicant’s conduct in light of all the circumstances that have occurred up to the time of making its decision. The case authorities provide guidance on the non-exhaustive factors the Tribunal may consider, however this does not require a balancing exercise to be undertaken. Nor does this present an occasion for the exercise of any discretion by the Tribunal. Rather, what is called for is a finding of fact. As to the “danger”, it must be something that exists to a degree less than probable and be a “real or significant risk or possibility of harm.”
In the present matter, the Tribunal has found that the Applicant’s mental health condition is a significant factor of itself, in terms of its appropriate treatment and future management and a significant factor as it touches on the various factors in the WKCG decision and other matters. Namely, the evidence regarding the relationship between the Applicant’s non-compliance with treatment and the risk of re-offending, the Applicant’s history of violent behaviour when unwell and the barriers to the Applicant’s rehabilitation and reintegration in the face of poor insight into his illness and substance abuse issues. For example, the Applicant not seeming to think that alcohol or marijuana were particularly problematic for him or his being reported as saying “I want to get off the injection” and “I don’t have a thought problem I have a stress problem.”
While the Applicant’s evidence at hearing articulated a willingness to comply with his treatment regime in the future and demonstrated some insight into his mental illness, his conduct since the hearing in terms of his continued non-compliance with medication and subsequent deterioration of his mental state on numerous occasions gives the Tribunal little, if any, confidence in this being the case.
The Applicant has emphasised orally and in writing that it is the detention environment as a “negative situational determinant” that triggers his symptoms of schizophrenia, given his traumatic background including torture and abuse by those in authority. The Applicant would like the Tribunal to accept that, removed from this detention environment, those triggers would be no longer present. The Tribunal has given its reasons as to why it cannot accept the detention environment to be the sole or key trigger of the Applicant’s symptoms or violent behaviour, that the community itself would be entirely free of those triggers and why it cannot be confident that the Applicant would, in future, comply with his treatment. In particular, without a current CTO, if the Applicant were released, there is, as far as the Tribunal is aware, no appropriate external monitoring of the Applicant’s prescribed treatment.
The Applicant asks the Tribunal to accept that the reintegration plan provided is adequate and that it meets the Applicant’s needs. The Tribunal has set out the shortcomings of the plan in light of the Applicant’s circumstances generally and his changed circumstances since the hearing.
The Tribunal’s present duty is to apprehend what the acceptable level of risk to the community is and to assess whether the Applicant, in the particular circumstances of the Applicant’s case is at an unacceptable level of risk. The Applicant has committed over 100 offences, several of which were noted by the sentencing judge as very violent and cruel, the violence being “just not acceptable.” The evidence before the Tribunal is that the Applicant has a history of violent behaviour when unwell and the risk of future violence is lower if the Applicant’s treatment needs can adequately be met. The Tribunal is of the view that the Applicant’s non-compliance with medication and, given the insufficiencies of the reintegration plan, the lack of adequate protective factors and social support leaves it in a position where the Applicant’s risk of future violence remains at a level that no member of the Australian community should have to tolerate.
For the reasons stated above, the Tribunal finds that the Applicant, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. As such, the Tribunal finds that the Applicant fails to satisfy subsection 36(1C) of the Act and in turn cannot be satisfied that the other criteria for the visa in the Act have been satisfied in accordance with subsection 65(1)(a)(ii) of the Act.
DECISION
The decision of the Respondent’s delegate dated 17 August 2017, to refuse to grant the Applicant a Protection (subclass 866) visa under section 65 of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 183 (one hundred and eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
......[sgd]..................................................................
Associate
Dated: 9 August 2018
Date of hearing: 8 November 2017 Counsel for the Applicant: Ms Copeland Solicitors for the Applicant: SCALES Community Legal Centre Counsel for the Respondent: Mr Edwards Solicitors for the Respondent: Australian Government Solicitor Appendix 1
Court
Court Date
Offence
Court Result
Perth Magistrates Court 27 Nov 2014 Unlawful Wounding
Unlawfully Wounded in circumstances of Aggravation
Stealing
Imprisonment 18 months concurrent.
Imprisonment 12 months concurrent.
Fined $200
Perth Magistrates Court 30 Nov 2014 Breach of Police Order Fined $500 Perth Magistrates Court 22 Feb 2013 Possess a Prohibited Drug (cannabis) Fined $250 Perth Magistrates Court 24 Oct 2012 Wilfully & Unlawfully Destroy or Damage Property
Without Lawful Excuse Trespassed on a Place
Imprisonment 3 months concurrent.
Imprisonment 3 months.
Rockingham Magistrates Court 14 Sep 2012 Being Armed or Pretending to be Armed in a Way That May Cause Fear Imprisonment 2 months concurrent. Rockingham Magistrates Court 22 Jun 2012 Assault Public Officer Imprisonment 2 months cumulative. Perth Magistrates Court 14 May 2012 Assault Public Officer
Assault Public Officer
Wilfully & Unlawfully Destroy or Damage Property
Breach of Suspended Imprisonment Order
Breach of Suspended Imprisonment Order
Steal Motor Vehicle
Damaging Property
Breach of Suspended Imprisonment Order
Breach of Suspended Imprisonment Order
Breach of Community Based Order
Wilfully & Unlawfully Destroy or Damage Property
Imprisonment 9 months concurrent
Imprisonment 9 months cumulative
Imprisonment 6 months cumulative
Imprisonment 4 months concurrent
Imprisonment 3 months concurrent.
Imprisonment 3 months concurrent.
Imprisonment 3 months concurrent.
Imprisonment 2 months concurrent.
Imprisonment 1 month concurrent.
Imprisonment 1 month concurrent.
Imprisonment 1 month concurrent.
Perth Magistrates Court 14 May 2012 Disorderly Behaviour in a Police Station
Disorderly Behaviour in a Police Station
Disorderly Behaviour in a Police Station
Disorderly Behaviour in Public
Breach of Community Based Order
Stealing
Breach of Community Based Order
Possess a Prohibited Drug (cannabis)
Person who Breaches Conditional Release Order or Community Order Without Reasonable Excuse (4 charges)
Breach of Community Based Order
Fined $750
Fined $500
Fined $500.
Fined $500.
Fined $300.
Fined $300.
Fined $200.
Fined $200.
Fined $200.
Fined $200
Rockingham Magistrates Court 17 Jan 2012 Breach of Police Order Fined $300. Perth Magistrates Court 20 Dec 2011 Final Hearing Following PSO, From Appearance on 13-oct-2011
Final Hearing Following PSO, From Appearance on 13-oct-2011
Final Hearing Following PSO, From Appearance on 13-oct-2011
Final Hearing Following PSO, From Appearance on 13-oct-2011
Possess a Prohibited Drug (cannabis)
Breach of Protective Bail Granted Conditions
Possess a Prohibited Drug (methylamphetamine)
Possess a Prohibited Drug (cannabis)
Imprisonment 4 months suspended on entering bond to be of good behaviour 9 months.
Imprisonment 3 months suspended on entering bond to be of good behaviour 9 months.
Imprisonment 2 months suspended on entering bond to be of good behaviour 9 months
Imprisonment 1 month suspended on entering bond to be of good behaviour 9 months.
Community Based Order for 9 months.
Community Based Order for 9 months.
Community Based Order for 9 months.
Community Based Order for 9 months.
Armadale Magistrates Court 16 Aug 2011 Disorderly Behaviour in Public Fined $400. Perth Magistrates Court 18 Feb 2011 Stealing Fined $400 Perth Magistrates Court 30 Dec 2010 Disorderly Behaviour in Public Fined $1000. Armadale Magistrates Court 30 Nov 2010 Assault Public Officer
Breach of Suspended Sentence
Fail to Comply with Request to Give Police Personal Details
Fined $1000.
Fined $400.
Fined $200.
Armadale Magistrates Court 16 Nov 2010 Disorderly Behaviour in Public Fined $500 Perth Magistrates Court 06 Jul 2010 Disorderly Behaviour in Public Fined $1000. Perth Magistrates Court 10 May 2010 Disorderly Behaviour in Public Fined $200. Perth Magistrates Court 12 Apr 2010 Disorderly Behaviour in Public
Breach of Violence Restraining Order.
Fined $500.
Fined $200.
Perth District Court of Western Australia 09 Apr 2010 Breach of Suspended Sentence (order of 7.9.09) Imprisonment 12 months. Perth Magistrates Court 11 Mar 2010 Disorderly Behaviour in Public
Indecent Acts in Public
Fined $400.
Fined $1000.
Armadale Magistrates Court 16 Feb 2010 Stealing Fined $200. Perth Magistrates Court 12 Jan 2010 Obstructing Public Officers
Disorderly Behaviour in Public
Disorderly Behaviour in Police Station
Obstructing Public Officers
Stealing
Fined $300.
Fined $500.
Fined $500.
Fined $300.
Fined $200.
Perth Magistrates Court 08 Jan 2010 Fail to Obey Order Given by an Officer
Breach of Suspended Imprisonment Order
Disorderly Behaviour in Public
Fined $200.
Fined $200.
Fined $250.
Perth Magistrates Court 22 Dec 2009 Assault Public Officer Imprisonment 7 months suspended on entering bond to be of good behaviour 12 months. Perth District Court of Western Australia 07 Sep 2009 Unlawful Wounding Imprisonment 12 months suspended on entering bond to be of good behaviour 12 months. Armadale Magistrates Court 18 Aug 2009 Breach of Bail Granted Undertaking
Common Assault
Fined $200.
Fined $500.
Perth Magistrates Court 14 Aug 2009 Disorderly Behaviour in Public Fined $1000. Perth Magistrates Court 24 Jun 2009 Obstructing Public Officers
Disorderly Behaviour in Public
Fined $500.
Fined $500.
Armadale Magistrates Court 29 May 2009 Drive Whilst Suspended
Dangerous Driving
Fined $300. Licence disqualified for 3 months.
Fined $600. Licence disqualified for 3 months.
Perth Magistrates Court 12 Dec 2007 Breach of a Conditional Release Order Fined $50. Midland Magistrates Court
12 Nov 2007
Aggravated Assault Occasioning Bodily Harm
Fined $1500.
Perth Magistrates Court 12 Jun 2007 Disorderly Behaviour in Public
Assault Public Officer
Assault Public Officer
Fined $200.
Imprisonment 6 months concurrent.
Imprisonment 6 months concurrent.
Perth Magistrates Court 25 May 2007 Breach of Bail Granted Undertaking Fined $200. Perth Magistrates Court 24 May 2007 Assault Occasioning Bodily Harm Fined $100. Perth Magistrates Court 09 Feb 2007 Suspects and Others May be Ordered to Move on
Disorderly Behaviour in a Police Station
Breach of Bail Granted Undertaking
Breach of Bail Granted Undertaking
Suspects and Others May be Ordered to Move on
Fined $100.
Fined $300.
Fined $100.
Fined $100.
Fined $150.
Midland Magistrates Court 27 Dec 2006 Breach of Police Order Fined $400. Perth Magistrates Court 23 Nov 2006 Breach of Bail Granted Undertaking
Assault Public Officer
Fined $100.
Fined $750.
Perth Magistrates Court 15 Nov 2006 Breach of Community Based Order (2 charges) Fined $800.
Fined $100.Perth Magistrates Court 28 Apr 2006 Disorderly Behaviour in Public Conditional release order for 6 months on $400 undertaking. Perth Magistrates Court 03 Feb 2006 Breach of Community Based Order
Suspect May be Ordered to move on
Disorderly Behaviour in Public
Community Based Order for 12 months.
Community Based Order for 12 months.
Fined $500.
Perth Magistrates Court 11 Jan 2006 Refused Breath Test
Fail Comply Requirement to Give Personal Details
Possess Weapon With Intent to Cause Fear
Possess Smoking Implement
Assault Public Officer
Breach of Bail Granted
No Drivers Licence
Fined $800. Licence disqualified for 6 months.
Fined $150.
Fined $250.
Fined $100.
Community Based Order for 18 months to perform 40 hours.
Fined $300.
Fined $100. Licence disqualified for 3 months.
Perth Magistrates Court 22 Dec 2005 Disorderly Behaviour in Public Fined $400. Perth Magistrates Court 20 Jul 2005 Disorderly Behaviour in Public Fined $500. Perth Court of Petty Sessions 08 Apr 2005 Disorderly Conduct Fined $500.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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