LKQD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 5225
•4 October 2022
LKQD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 5225 (4 October 2022)
Division:GENERAL DIVISION
File Number(s): 2017/5056
Re:LKQD
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO KC, Deputy President
Professor Ben-Tovim, Member
Date:4 October 2022
Place:Sydney
Accordingly, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration in accordance with a Direction that the Applicant is not considered a “danger to the Australian community” pursuant to paragraph 36(1C)(b).
.....................................[sgd]...................................
The Hon. Dennis Cowdroy AO KC, Deputy President
CATCHWORDS
MIGRATION – application for review of decision to refuse Visa – applicant’s extensive criminal record – whether applicant poses a danger to the Australian community – extensive criminal record – mental illness
LEGISLATION
Migration Act 1958 (Cth)
Mental Health Act 2007 (NSW)
CASES
BHYK AND MINISTER FOR IMMIGRATION AND CITIZENSHIP [2010] AATA 662
DOB18 V MINISTER FOR HOME AFFAIRS [2019] FCAFC 63
DO AND MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2016] AATA 390
KDSP V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2020] FCAFC 108
LKQD V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2019] FCA 1591
MINISTER OF IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS V EBD20 [2021] FCAFC 179
QUEEN V KEENAN [2009] HCA 1
R V BARLOW [1997] HCA 19
RE SALAZAR ARBELAEZ V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1977) 1 ALD 98
Weti-Safwan and Minister of Immigration and Border Protection [2016] AATA 797
WKCG and Minister for Immigration and Citizenship [2009] 110 ALD 434
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO KC, Deputy President
Professor Ben-Tovim, Member4 October 2022
The Applicant held a Class XB Subclass 200 Refugee Visa until 11 February 2015 when it was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (“the act”) as a result of the Applicant serving a sentence of imprisonment.
On 10 February 2017 the Applicant then made an application for a Protection (subclass 866) Visa on 2 March 2017. On 17 August 2017 a delegate of the Minister made a decision under section 65 of the act to refuse the grant of such visa. The Applicant then applied for review of such decision before this Tribunal. By decision dated 9 August 2018 the respondent’s delegate’s decision to refuse to grant a Protection visa was affirmed.
The Applicant appealed such decision to the Federal Court of Australia. By decision dated 1 October 2019 the Federal Court of Australia upheld the appeal and made the following orders:
1. The application is allowed.
2. A writ of certiorari issue directed to the second respondent quashing its decision made on 9 August 2018.
3. A writ of mandamus issue directed to the second respondent, requiring a Tribunal constituted differently to the Tribunal it made the decision of 9 August 2018 to determine the applicant’s application for review and according to law.
ISSUE BEFORE TRIBUNAL
In respect of the legislative framework around visa refusals of this nature, subsection 36(1C) of the act provides:
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.
The Respondent filed a Statement in Reply dated 13 August 2021 which refers to harm caused by the Applicant, including to Commonwealth officials, namely detainee service officers. Three separate incidents occurred on 20 March 2020; on 4 April 2020; and on 18 April 2022. The Applicant acknowledges that he has been convicted of a “particularly serious crime” as defined in section 5M of the act. The Tribunal notes that the Applicant has convictions for “unlawful wounding” which carries a maximum penalty of five years imprisonment and “unlawfully wounded in circumstances of aggravation” which carries a maximum penalty of seven years’ imprisonment. Accordingly, the Tribunal is satisfied that the Applicant satisfies the requirement under paragraph 36(1C)(b) that he has been convicted by a final judgment of a particularly serious crime.
Therefore, the parties agree that the only issue before the Tribunal is whether it is satisfied that the applicant poses a “danger to the Australian community”.
Reference is made in the Respondent’s Statement in Reply to threats made by the Applicant whilst he was in detention and the Respondent asserts that the Tribunal “can have absolutely no confidence in the applicant will be compliant with his treatment. Nor can it have any confidence that the applicant will not offend, and violently offend.” The Respondent submits that the applicant poses a danger to the Australian community and that the decision under review should be affirmed.
As agreed by the parties, no substantive issue of non-refoulement arises in these proceedings. Further, issues of the kind that arose in DOB18 v Minister for Home Affairs (2019) 269 FCR 636, namely whether the Minister was, and the Tribunal is now bound to consider non-refoulment does not arise for consideration.
APPLICANT BACKGROUND
The Applicant, who was born in South Sudan in January 1979, is now 43 years of age. He arrived in Australia 4 May 2004 as the holder of a Refugee XB-200 visa. Since that date the Applicant has committed numerous criminal offences as contained in the schedule hereunder. He remains in detention pending the outcome of these proceedings.
There is no dispute that the Applicant is mentally unwell, and that a Guardianship Order has been made in view of the fact that the Applicant is unable to care for himself. The Applicant’s illness has been attributed to his experiences, including torture in the Sudan and possibly exacerbated by detention.
The material before the Tribunal records the Applicant being born in January 1979 in a locality known as Aweil which is now in South Sudan. He was a member of the Dinka tribe and a Catholic Christian. In 1986 at age 14 he fled from his hometown to his grandmother’s town of Machalagan to avoid being conscripted as a child soldier by Armed Forces. Such forces later became the South Sudanese Armed Forces.
In 1993 Machalagan became involved in conflict and the applicant fled to Babanosa, Sudan. He was separated from his family from that time and does not know their fate. The Applicant was first taken by the Red Cross to a children’s camp, then placed in a Catholic school and orphanage both located in North Sudan.
In 2000 the Applicant commenced working for the church, at one stage making a speech to a Catholic organisation event where he criticised the South Sudanese government. He states that he was kidnapped, tortured, and raped by Sudanese intelligence officers. The Applicant was only released upon arrangement that he was to spy upon the Bishop of his church. He refused to do so and in 2001, assisted by his Bishop, he fled to Cairo, Egypt. In 2002 he was found to be a refugee by the UNHCR in Cairo.
The Applicant arrived in Australia in 2004 and sometime after his arrival, commenced a relationship with an indigenous woman of the Noongar nation (hereafter referred to as “JH”). As a result of such relationship the Applicant’s son (hereafter referred to as “N”) was born in November 2010.
The Applicant was free of any convictions for two years after his arrival in Australia but thereafter he commenced offending as set out in the schedule. There was an escalation in the nature of the offending including aggravated unlawful wounding committed upon his partner when he threw a mug which struck her on the back of her head. Another offence was committed, namely approaching and stabbing a stranger in a car park. These offences occurred on 1 December 2013. The Applicant has not been in the community since that time due either to incarceration or immigration detention.
The Applicant was diagnosed with paranoid schizophrenia when he was admitted to the Frankland Centre in 2013. On 27 November 2014 the applicant was sentenced to two and a half years’ imprisonment. The Applicant has expressed contrition for his offending in a statutory declaration signed on 6 November 2017:
“I have been convicted of some serious offences, some that include violence. I am deeply sorry for the pain I have caused my victims. I do not want to ever hurt anyone again.
The problem is that when I am unwell, it is very difficult for me to control my actions.”
Guardianship application
On 10 March 2022 the Civil and Administrative Tribunal (NSW) (“NCAT”) in its Guardianship Division heard an application for the appointment of a Guardian for the Applicant. Having considered the psychiatric evidence of three separate specialist psychiatrists, NCAT stated at [21] of its decision dated 10 March 2022:
On the basis of the above medical evidence in considering (the applicant’s) statement and his presentation in the hearing, the Tribunal is satisfied that (the applicant) has a disability which prevents him from making important life decisions. He is a person for whom the Tribunal could make a guardianship order.
Having heard further submissions, NCAT at [29] said, relevantly:
The Tribunal was satisfied that it was in [the applicant’s] best interests to make a guardianship order and to allow the Guardian to make decisions about advocacy and legal services, both in terms of the engagement of legal services for the AAT appeal and authorise the Guardian to provide instructions in that matter
Guardianship Order
Accordingly, orders were made as follows:
“1. A Guardianship order is made for [the Applicant];
2. The Public Guardian is appointed as the Guardian;
3. This is a continuing guardianship order for a period of 12 months from 10 March 2022;
4. This is a limited guardianship order giving the Guardian custody of [the Applicant] to the extent necessary to carry out the functions below. “The Guardian has the following functions:
“a) Advocacy: to advocate generally for [the Applicant]
b) Accommodation: to decide where [the Applicant] may reside
c) Services: to make decisions about services to be provided to [the Applicant]
d) Legal services: to make decisions for abstract the applicant in relation to access to legal services. “The condition upon which this order is made reads as follows:
“a) Standard Condition: In exercising this role the Guardian shall take all reasonable steps to bring [the Applicant] to an understanding of the issues and to obtain and consider his views before making significant decisions.”
Community Treatment Orders
Western Australia
A Community Treatment Order (“CTO”) was made in Western Australia on 14 June 2017 whilst the Applicant was in detention. The order states the reasons for making such order are that:
·the Applicant has a mental illness and because of mental illness there was a significant risk to the health or safety of the person; or to the safety of another person; or a significant risk of serious harm to the person or to another person; or a significant risk of the person suffering serious physical or mental deterioration;
·the Applicant did not demonstrate the capacity to make a decision about the provision of treatment to himself;
·the treatment in the community could be reasonably provided to the person;
·there was no alternative that would be less restrictive of the person’s freedom of choice and movement;
·the treatment of the applicant and the community would not be inconsistent with the person’s need to be provided with treatment for a reason specified above; and
·that suitable arrangements can be made for the treatment and care of the person in the community including arrangements for a psychiatrist to be the supervising psychiatrist under the order; and for a medical practitioner or mental health practitioner to be the treating practitioner under the order.
The CTO recorded:
“This man suffers from a chronic paranoid psychosis, with no insight. He has a history of repeated non-compliance with oral medication (which is effective when taken in Hospital), thus has had multiple relapses and Hospital admissions. He is commencing a new depot anti-psychotic today.”
As referred to hereunder, such order was revoked on 28 June 2017. The reason for revoking the order is stated to be:
“I am satisfied, having regard to the criteria in section 25 of the Mental Health Act 2014 [WA] and the criteria for a community treatment order that the person is no longer in need of a community treatment order.”
Despite the above, there is material to suggest that the order was revoked only because it was considered that the order, involving treatment, could not be effectively carried out on Commonwealth property, namely the detention centre.
New South Wales
A Community Treatment Order (“CTO”) was made (date unknown) under section 51 of the Mental Health Act 2007 (NSW) in relation to the applicant, the administration of which was performed by the Bankstown Community Mental Health Service. Such order was made whilst the applicant was detained at the Villawood Immigration and Detention Centre. The purpose of the order was to ensure that the applicant was receiving appropriate medication prescribed for him for his mental health. Such order expired on 16 May 2022.
A second CTO was made on 25 May 2022 requiring the Bankstown-Lidcombe Mental Health Service to implement the order which remains current until 24 May 2023. The reason for such an order is stated as follows:
“The Tribunal is satisfied that [the Applicant] will benefit from this order as the least restrictive alternative.”
EVIDENCE
Statements
The Tribunal has had regard to the various character references and statements before it. One such reference is dated 3 June 2015 from the chaplain of Acacia Prison. Such reference refers to the Applicant’s four separate periods of incarceration for violence up to June 2015 and the writer stated they were related:
“…to his mental health issues and his past experiences in Sudan. [The Applicant] states that he is remorseful relating to his previous offences.”
Another reference is from the Applicant’s former partner, Ms JH who has provided a detailed letter dated 17 December 2015 which provides extensive history of her relationship with the Applicant and with N. The letter is very supportive of the Applicant.
The Applicant has provided a statement (dated 3 December 2019). The statement apologises for his convictions and for his conduct at the Yongah Hill Detention Centre when he assaulted the officers. The applicant refers to counselling which he has had from an organisation known as the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”). Medical evidence
Medical evidence has been adduced as follows:
·two reports of Jonathan Laugharne, consultant psychiatrist, as discussed hereunder;
·a report of Yviette Aiello of STARTTS who holds qualifications of MA Clinical Psychology; and
·reports of Shaun Nemorin BA (Psych), Post Grad Dip, MWS Counsellor.
In addition to the above documentation the Tribunal heard oral evidence from the Applicant and from Dr Jonathan Laugharne, psychiatrist.
Applicant’s family
The applicant has no immediate family in Australia, except for his son, N, who is in care in Western Australia. N was residing with his mother but there is some material to suggest that the boy has been taken into care of another person or institution.
In a statement made by JH declared on 8 June 2016 she states that N “absolutely adores his father, he loved to speak with him. He loves him very much and talks about him to other kids telling them about him”. JH also states that:
“If my son did not have his father in his life he would be devastated. Even while he has been in prison they have still stayed in contact and have a very strong relationship. My son needs his father.”
It is claimed that N would visit whilst the applicant whilst the applicant was detained in the Perth Immigration Detention Centre and between visits, the applicant and N often spoke by telephone. Whilst the relationship between the applicant and JH has terminated, JH and the applicant intend to play an active role in the upbringing of N.
The Tribunal notes the evidence of the applicant that he speaks N even though visits are impractical because N resides in Western Australia and the applicant is in detention in New South Wales. The Tribunal accepts that there is a close relationship between N and the Applicant.
OFFENDING HISTORY
The Applicant has a long history of offending. The schedule of offending records that the Applicant has been convicted of over 100 offences from 2005 to 2014 and that there are no significant periods of non-offending. Some of offences are violent and the Applicant has served several periods of imprisonment. However, the offending must be considered against the mental health condition of the Applicant as is considered hereunder. The sentencing remarks of the relevant judicial officers are also set out below.
Court
Court Date
Offence
Court Result
Perth Magistrates Court
17 July 2020
Caused harm to a Commonwealth
OfficialCaused harm to a Commonwealth
OfficialCommon assault
Imprisonment 8 months concurrent
Imprisonment 12 months concurrent
Fine $500
Perth Magistrates Court
27 Nov 2014
Unlawful Wounding
Unlawfully Wounded in circumstances of Aggravation
Stealing
Imprisonment 18 months concurrent.
Imprisonment 12 months cumulative
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
Willfully & Unlawfully Destroy or Damage Property
Without Lawful Excuse Trespassed on a Place
Imprisonment 3 months concurrent.
Imprisonment 3 months concurrent.
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
Willfully & 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
Willfully & Unlawfully Destroy or Damage Property
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
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.
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 cumulative
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.
SENTENCING REMARKS
Sentencing remarks: 2012
On 24 October 2012 the Applicant was sentenced for three months’ imprisonment with parole and the sentencing remarks include the following:
…[Applicant], these offences aren’t in the scheme of things overly serious and you have course get no mitigation at all for your record which is, frankly, appalling and you have been offending non-stop for the better part of six years now. You have been dealt with by way of imprisonment, presentence orders, community-based orders, suspended sentences, fines, you name it, you have had every conceivable sentence the court can throw at you and it’s had no impact whatsoever on your behaviour.
It is plain there is no mitigation for drug-induced psychosis the answer that is stop taking drugs and you won’t get the psychosis and hopefully that’s the realisation that you have come to.
Sentencing remarks: 2014
In the sentencing remarks for the matter of Western Australian Police v [The Applicant] heard on 27 November 2014, the Magistrate considered instances of assault which included the Applicant throwing a mug at JH and then unlawfully wounding a stranger with a knife, which the Magistrate observed were serious. The Magistrate specifically addressed the Applicant’s mental health and risk of reoffending, noting:
You unfortunately have had a history of mental illness. You have suffered with paranoid schizophrenia. That has been exacerbated by history of drug usage and alcohol usage. You have, in the time here in this country, amassed a significant criminal record, a record that shows that you have used violence in the past. You have been subject to several different sanctions by the courts from time to time and when you have been subject to community style orders you have demonstrated a poor history of compliance.
There are concerns in the reports that I read particularly from the psychiatric report that unless you are not abiding by your mental health program, your medication, that you are at risk of reoffending particularly in light of statements and indications that you do not have particular victim empathy and that you have, in some respects, sought to shift your blame blaming your mental health. To some extent I accept that your mental health has contributed to your behaviour. Your mental impairment, your mental illness is a relevant sentencing consideration.
Sentencing remarks: 2020
On 17 July 2020 the Applicant, having pleaded guilty at an early stage to each charge, was sentenced for the charges of assault on the Commonwealth officers at the detention centre. The sentencing remarks of the Magistrate similarly (to the Magistrate in the above instance) noted the traumatic background of the Applicant and stated that:
It also seems clear to me and I make a finding that you do, as a matter of fact, suffer from a mental illness.
But then again back in time, [the Applicant], in 2020 on 10 February 2020 he was seen by Dr Wynn Owen– a very experienced psychiatrist – who noted you weren’t well. You are encouraged to take olanzapine
On 24 February he saw you again and you clearly were, in his words, delusional. Thoughts were tangential. He thought (indistinct) you were relapsing. Likely would need to transfer. So, clearly not well at that time. 9 March Dr Owen sees you again. Describes in the notes your mood is angry and agitated rapidly moving between topics. Paranoid delusions. Considered to have relapse into schizophrenia and there was an attempt to arrange an admission. I’m just going to stop there to note that on 9 March that’s about 10 days before the first offence…
The Magistrate was satisfied at the relevant times when the offences were committed the Applicant was unwell and was affected by his underlying mental illness, stating:
“…and that that was linked to your offending, that is to say, there is a causative – causal connection between your mental illness and your offending behaviour.
And so, I am satisfied on the balance of probabilities there is that causal connection.”
ANALYSIS OF MEDICAL EVIDENCE
Psychiatric report (dated 28 October 2014)
A Psychiatric Report was prepared on 28 October 2014 by a consultant psychiatrist (whose name has been redacted) who expressed the following opinion:
“[The Applicant] has a mental illness, most likely paranoid schizophrenia. According to his history, he has had 4 to 5 years of auditory hallucinations, persecutory delusions, surveillance delusions and thought passivity. However, I note that he did not report psychotic symptoms in a psychiatric assessment in 8/5/2012. It is possible that he may have been guarded about his symptoms in that assessment, all that is current reported time-liner symptoms may be unreliable.”
The psychiatrist concluded that the Applicant’s mental health issues would need to be addressed in the community to reduce risk of reoffending. The psychiatrist noted that some of the offences were related to mental illness which had been exacerbated by substance use. The psychiatrist expressed the following opinion:
“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.”
Psychiatric report of Dr Jonathan Laugharne dated 5 July 2021
Dr Laugharne, consultant psychiatrist, assessed the Applicant in 2017 and had provided a report dated 30 October 2017. His 2017 report states, inter alia, as follows:
“He has been detained in Perth Detention Centre since leaving prison in June 2016 and remains there. He has several brief admissions to psychiatric units over the last 12 months, due to deterioration in his mental state and several psychiatrists who have assessed him, both at the Perth Detention Centre and at the hospital he has been admitted to, have expressed opinions that he would be better managed in the community and that his detention is effectively worsening his mental state and his response to treatment. It does seem he now has a well-established diagnosis of paranoid schizophrenia, and he may also have a diagnosis of post-traumatic stress disorder, although the evidence for this is less conclusive”.
Dr Laugharne concluded:
“[The Applicant] has a serious mental illness in his diagnosed paranoid schizophrenia”.
In reference to the Applicant’s treatment advice, he further opined:
“He requires consistent treatment with an effective antipsychotic medication and experience seems to show that because of non-compliance with oral tablets, depot medication (long-acting intramuscular injections) is indicated. Provided he is well managed in the community via a Community Treatment Order and actively involved multidisciplinary community mental health team with regular reviews (at least weekly initially) I do think that is reasonably likely that [The Applicant’s] mental health would improve overall as a result of being free from the restrictions of detention.”
Report of Yvette Aiello (undated) (STARTTS)
This report refers to an interview held with the Applicant for a period of two hours conducted on 12 February 2021 at Villawood Immigration Detention Centre. The report states, inter alia:
“[The Applicant] shared that he found his time in the Immigration Detention Centre in Perth to be traumatic and being placed in confinement for 8 days triggered his experiences of being kidnapped and tortured in Sudan.
[The Applicant] reported previously being treated in ways he found confronting in response to mental health difficulties he was having; including being placed in confinement and being given medication through injection. As a result, it is likely that [The Applicant] was concerned about the ramifications of speaking about his mental health symptoms. What he did report was suggestive of symptoms of Post-Traumatic Stress Disorder (PTSD), which is consistent with his reported experiences of trauma.”
It continues:
“[The Applicant] expressed that he found talking about his past helpful in reducing his distress. It is recommended that [the Applicant] be referred for ongoing counselling to assist him to build coping strategies to manage the uncertainty of his current situation and in the longer term to help him build insight & understanding of the impact of his past experiences. [The Applicant] reported being highly motivated to seek assistance to manage his emotional and mental health concerns and the impacts these have on his behaviour.”
Report of Shaun Nemorin Team Leader, NSW (STARTTS) (qualifications unknown)
This report dated 19 April 2021 refers to four sessions of treatment conducted during March 2021 of one hour each. The report recommends that counselling continue and states inter alia:
“[The Applicant] was coherent and articulate pertaining to his needs as a sufferer of mental illness and attributed the closed environment to be detrimental to his illness. He regularly spoke of incidences whereby he had conflict with guards, paranoia surrounding their intentions to him, coupled with stories of adverse experiences being placed in isolation during detention in Western Australia. He was able to link said experiences to his tortured experience prior to arrival in Australia.”
The report recommended that sessions be continued face-to-face.
Report of Shaun Nemorin (dated 9 May 2021)
This report refers to three sessions of treatment attended by the Applicant during April 2021. Four sessions were offered but the applicant did not attend the fourth session the report states, inter alia:
“Due to an increase in mental illness symptomology, the Council has sought to bring structure to sessions in a way which is integrated into the client’s worldview and something of value to him. Sessions have therefore been discussions about illusionary material presented and cognitive reframing around such. [The Applicant] discusses Bible verses and the importance of these to his life and how we can integrate teachings into his life.”
The report recommends ongoing counselling sessions and that the Applicant’s Visa status be resolved.
Report of Shaun Nemorin (dated 19 June 2021)
This report refers to three further sessions of counselling undertaken during May 2021. The Applicant did not attend one session. The recommendations made are similar to previously.
Report of Shaun Nemorin (dated 6 July 2021)
This report refers to four sessions carried out in June 2021 by telehealth appointment and by telephone. The report refers to the Applicant’s feelings of mistrust and persecution from detention guards; the perception that he is not believed and that he is goaded into conflict with them. The psychologist opined that his symptomology attributed to mental illness is a normal reaction to the abnormal experiences of torture. The report states (inter alia):
“Considering his specific circumstance of torture, a detention environment is arguably one of the worst he could be in with his mental health in consideration.”
Report of Shaun Nemorin (filed with the Tribunal in July 2022)
This report asserts that the Applicant was tortured and experienced sexual violence and that the speedy resolution of these proceedings to end the continued detention is recommended. Mr Nemorin states that the continued detention is likely to exacerbate the Applicant’s already poor mental health status and that he should be transferred from the detention centre to receive treatment in a community setting. He claims that continued detention would likely result in the Applicant’s regression’s mental illness. The report recommends ongoing treatment.
Reason for offending in 2020
Detention in isolation
The material before the Tribunal refers to the consequences of High Care Accommodation (“HCA”). In the Australian Human Rights Commissions Inspections of Australian Immigration Detention Facilities 2019 report (released December 2020), HCA is a term used for “single separation”. Such separation is described as “single occupancy bedrooms that are sparsely furnished with hard, fixed furniture”. It is stated that such accommodation is constantly monitored by CCTV and those held in “closed-door arrangements are not able to access any common areas and are confined to their rooms”.
The United Nations’ Standard Minimum Rules for the Treatment of Prisoners (“known as the “Mandela Rules”) prohibits the imposition of solitary confinement “in the case of prisoners of mental or physical disabilities when their conditions would be exacerbated by such measures” [emphasis added].
The Royal Australian and New Zealand College of Psychiatrists states in a publication “Minimising the use of seclusion and restraint in people with mental illness”, Position statement 61 (February 2016) as follows:
“Seclusion and restraint are generally used in the hope of preventing injury and reducing agitation, but studies have reported substantial deleterious physical and more often psychological effects on both patients and staff.”
Other literature provided to the Tribunal refers to the substantial harm that may be suffered by persons who have an underlying mental health condition whilst in solitary confinement. Metzner and Fellner in a publication entitled “Solitary Confinement and Mental Illness in US Prisons”: a Challenge for Medical Ethics (2010) 38 J Am Acad Psychiatry Law at 104-105 states:
“Solitary confinement is recognised as difficult to withstand; indeed, psychological stressors such as isolation can be as clinically distressing as physical torture…
The adverse effects of solitary confinement are especially significant for persons with serious mental illness, commonly defined as a major mental disorder (e.g.., schizophrenia, bipolar disorder, major depressive disorder) that is usually characterised by psychotic symptoms and/or significant functional impairment. The stress, lack of meaningful social contact, and unstructured days can exacerbate symptoms of illness or provoke recurrence. Suicides occur disproportionately more often in segregation units than elsewhere in prison. All too frequently, mentally ill prisoners decompensate in isolation, requiring crisis care or psychiatric hospitalisation. Many simply will not get better as long as they are isolated.”
Opinion of psychiatrist, Dr Laugharne
Dr Laugharne expressed the supporting opinion on 5 July 2021:
“In my opinion his [the Applicant’s] ongoing detention by removing his autonomy in making his life choices very restricted and him feeling rather hopeless for any sort of normal life in the community is likely worsening his overall mental state – at least by raising his anxiety, and possibly also worsening his tendency to paranoid thinking.”
Dr Laugharne considered that detention was an “overall negative influence on [the Applicant’s] mental health”.
Impact of sub-optimal treatment of the Applicant upon his mental illness
During his period of detention, the Applicant has undergone significant psychotic relapses which as required his admission to hospital. In June 2017, whilst the CTO was current in Western Australia, such CTO required the Applicant to attend Bentley Hospital fortnightly to receive a Depot injection. Without consultation or notice to the Applicant, the CTO was cancelled on 30 November 2017 for the reason that the Western Australian authorities considered that the Mental Health Act 2014 (WA) did not operate in Commonwealth territory, in this case being a detention centre.
In consequence the Applicant was detained in Western Australia and could not be involuntarily treated unless hospitalised. The management of his mental health impairment was accordingly virtually suspended until the Applicant’s mental condition deteriorated to such an extent that he would meet the criteria for in voluntary hospitalisation. Only then would the applicant be transported to hospital to receive his treatment.
Such approach is evident from the fact that on 20 May 2019 the Applicant declined to have his Olanzapine depot injection, but he was “not considered to meet the Mental Health Act criteria to be returned to hospital to receive his depot as he was not on a Community Treatment Order”.
Accordingly, the Applicant was required to wait to 14 June 2019 to receive such treatment when he was admitted to Midland Hospital.
The Tribunal notes that the basis for the opinion that the Western Australia CTO would not operate in a detention facility has not been put before the Tribunal. Irrespective, the fact is that the Applicant was denied prescribed medication when there was a need for such treatment, and it was not until he was in desperate need for treatment that he was removed to hospital.
Significance of incarceration upon Applicant’s Mental Health
The Applicant had been subjected to HCA or Health Care 2 from 29 January 2020 to 20 April 2020, each of which is a form of separate and restrictive detention.
During such period of detention, it is apparent that the Applicant was mentally unwell. The Applicant told a psychiatrist, Dr Owen, on 10 February 2020 that “all chairs in HCA are designed to torture him”. In this period the applicant was refusing to take his anti-psychotic medication, yet he was not provided with hospital assistance. If the CTO had been current, the Applicant would have been removed to hospital for treatment. However, an IHMS record of 27 February 2020 states that the available option appeared to be “to watch and wait”. It appears that no proactive steps were taken to provide the essential mental health care to the applicant, the need for which was readily apparent.
On 9 March 2020, psychiatrist Dr Owen wrote a note to the effect:
“…will require involuntary hospital admission unless this self resolves (highly unlikely).”
A comprehensive review was performed on 1 April 2020 by Dr Spencer who advised that the Applicant should be placed in hospital. She stated inter alia:
“[The Applicant] has relapsed again. Schizoaffective Disorder with prominent mood and psychotic symptoms. He has a very high risk of violence when unwell. I do not think IHMS should wait for [The Applicant] to be aggressive or self-harm before we use the Mental Health Act to transfer him to hospital.”
Offences against detention officers
The offences committed on 20 March 2020, 4 April 2020, and 18 April 2020 were committed whilst the Applicant was in isolation, and:
(a)only after the Applicant had been kept in effective isolation: the applicant was in detention, either exclusively detained in HCA or Health Care 2 for a period of 40 days and at one point for a continuous period of two weeks;
(b)during the very period which the psychiatrists opined that the Applicant was in need of treatment; and
(c)at a time when the Applicant was overdue for his medication by injection to be administered to him in a hospital, the previous dose having lost any benefit for the applicant due to the effluxion of time.
Dr Aleksandar Janca, psychiatrist engaged by IHMS, treated the Applicant. She expressed the opinion on multiple occasions (as contained in her notes dated 22 September 2016, 7 July 2016, 4 August 2016, 12 September 2016, and 24 February 2017) that the Applicant should be transferred to the community for continuation of his psychotic treatment, especially since the psychiatric care required by the Applicant could not be adequately provided in the detention facility.
On 13 July 2016 a treating psychiatrist for the applicant at the St John of God Midland Public Hospital, Dr Tawasu wrote:
“His mental state at the detention [centre] seems to be related to his perception of detaining authority, his psycho-social circumstances of not being with his family in the community and his cultural attitude to authority figures. These prevailing factors make the detention a toxic environment that will not provide stability in his mental health at this stage. The cultural fear that he will leave his son behind in Australia when he is deported perpetuates is reactionary behaviours towards the system.
It is therefore my suggestion…that [the Applicant] be considered for release to continue psychiatric treatment in the community. This is more humane and allow conducive atmosphere for recovery and stability of his mental state.”
Another consultant psychiatrist, Dr Williams, supported such view and said in his notes dated 26 October 2016:
“I would certainly support Dr Janca’s recommendations that this man’s issues would be far better managed in the community where his mental state would be a lot more stable and reinforcers to relapse a lot less.”
The expert medical opinions were not acted upon and the applicant remained in sub- optimal circumstances thereafter.
DANGER TO THE COMMUNITY?
The issue which the Tribunal must determine is whether the Applicant poses a “danger to the Australian community”: see paragraph 36(1C)(b) of the act. It is not disputed that the Applicant has been convicted by a final judgment of a particularly serious crime as referred to in such subsection. Yet the Tribunal observes that the mere fact that the Applicant has been convicted of a serious crime does not lead to the conclusion that he is a danger to the Australian community.
In determining this issue, both parties agree with the relevance of the tests identified in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 at [25]-[26] as follows:
The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase a language of Article 33 (2) of the Refugees 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.
Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with a period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed.
The Tribunal notes the observations made of the above decision in the matter of DOB18 v Minister for Home Affairs [2019] FCFC 63 at [83], where Logan J observed:
In my view, read in context, ‘danger’ in s 36 (1C) means present and serious risk. To the extent that what is stated in WCKG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about ‘danger’. In my view, it carries a narrower and more restrictive meaning than just ‘risk’.
The Tribunal also observes the observations of Jackson J in LKQD v In Minister for Home Affairs 2019 [FCA] 1591. At [57] the Court considered that there was no ambiguity in the text of section 36(1C) and continued:
I agree with Deputy President Tamberlin where, in WCKG at [25], he observed that the words used in article 33 (2) are ‘plain and simple English’. By extension, so are the words in section 36 (1C) (b). And this section does not say ‘very serious danger’. It just says ‘danger’.
At [62] the Court said:
I note that Logan J, sitting on the Full Court, has recently held that, read in context, and “danger” in section 36 (1C) means “present and serious risk” and has suggested that may be inconsistent with WKCG: DOB 18 v Minister for Home Affairs [2019] FCAFC 63 at [83].
Other authorities refer to the duty of the Tribunal in determining the risk level, for example, Brennan J, as President of the Tribunal, in Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, where at [100] the learned President had said:
The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess what is the and to assess whether a particular applicant in the circumstances of his case is at an unacceptable risk.
Further, the Tribunal must observe whether there is a “real or significant risk or possibility of harm to members the Australian community”: see BHYK and Minister for Immigration and Citizenship [2010] AATA 662 at [53].
In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108, Bromberg J, in obiter made the following observations:
Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]).
The Tribunal observes that the question of whether WKCG has been correctly decided remains for determination: see Minister of Immigration, Citizenship, Migrant Services andMulticultural Affairs v EBD20 [2021] FCAFC 179 at [33]. However, the Tribunal will adopt the principles referred to in WKCG as they are the current established principles.
OBSERVATIONS
The Tribunal accepts that the Applicant is suffering from a mental illness, which requires ongoing treatment. As such, the Tribunal considers that the expectations of the Australian community would take consideration of the fact that the applicant’s offending has resulted from his mental illness. Accordingly, the Australian community would take such consideration into account the Applicant’s mental illness as being an important factor in permitting him to remain in Australia especially as the material before the Tribunal suggests that no facilities would be available to him if he were returned to Sudan. The evidence is that there are only two qualified psychiatrists in that country.
The panel constituting this Tribunal includes Member Professor Ben-Tovim, who is himself a trained psychiatrist who has been appointed (and re-appointed) to the Tribunal as an expert in relation to his mental health background. Such member brought to the Tribunal his substantial expertise which was applied in the assessment of the evidence of the expert psychiatrist, Dr Laugharne.
Dr Laugharne provided extensive oral evidence that supplemented the evidence provided in written reports provided to the AAT Tribunal hearings in 2017, and 2021. Dr Laugharne is a psychiatrist with long experience in the treatment of severe mental illnesses, in the treatment of Post-Traumatic Stress disorders, and in the mental health care of refugees. He has published on a variety of psychiatric topics in scholarly journals and is a distinguished member of the mental health care community.
Dr Laugharne made an in-person review of the Applicant in 2017, and a review by video conference in 2021. In 2017, Dr Laugharne also had access to a variety of mental health reports written by senior consulting psychiatrists who had treated the Applicant after he had been sentenced in the Perth Magistrates Court.
Dr Laugharne made a diagnosis of paranoid schizophrenia in 2017 and he confirmed that diagnosis in 2021. Dr Laugharne’s evidence as an expert witness was unchallenged. Dr Laugharne was asked about the extent to which the Applicant’s mental illness had played a part in his various offences. Dr Laugharne stated that he believed that such illness was active in 2013 and was an important contributor to his serious offences in 2013 and continued to be as factor in further offences. Dr Laugharne thought it likely that the illness had been present for “at least a couple of years” prior to 2013, but without further information than was provided to this Tribunal, this was only a supposition.
On questioning, Dr Laugharne was of the view that, as well as suffering from Paranoid Schizophrenia, the Applicant suffered a Post-Traumatic Stress Disorder because of his experiences in South Sudan, a disorder that was likely to have been present on arrival in Australia. This may have played a role in some of his earlier less serious offences, but that was also a speculative statement.
Dr Laugharne was also asked about the current therapeutic arrangements for the Applicant, including the Guardianship and Community Treatment orders. Dr Laugharne made it clear that the response to treatment of individuals with mental illness is variable, and the risk of aberrant behaviour is always present in severe mental illness, but that risk can be minimised with optimal treatment. He was of the opinion that the current arrangements, which provided an opportunity for ongoing psychosocial and therapeutic support, were, in the Applicant’s case, likely to be of substantial benefit in minimising the unavoidable risks of further adverse behaviours related to his mental illness.
Following the evidence provided by the Applicant, and Dr Laugharne, Professor Ben-Tovim saw no reason to demur from Dr Laugharne’s diagnostic or therapeutic conclusions.
It is also of note that Dr Laugharne has an association with the Department of Behavioural Sciences in the Kwame Nkrumah University of Science and Technology in Kumasi, Ghana. Whilst this does not include direct experience of the mental Health services in South Sudan, Dr Laugharne is one of only a very small number of Australian psychiatrists with experience of mental health services in Africa outside of South Africa. He was able to give a confident assessment, based on his experiences of mental health services in the relatively wealthy context of Ghana, that trained mental health care in South Sudan would be likely to be essentially unavailable.
Relevance of medical evidence in relation to mitigation of risk
The Tribunal is required to assess the extent to which the applicant can be considered a danger the Australian Community. As previously stated, “[s]ome relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances….”
The medical evidence, and the reports provided by counsellors and psychologists are of key relevance to the considerations identified above.
There is clear agreement from a variety of sources that the Applicant suffers from Paranoid Schizophrenia, and that his illness is not in full remission. Dr Laugharne’s oral evidence made it clear that the diagnosis of Schizophrenia had been made by a variety of expert psychiatrists, including himself. He also clarified that the variations in nomenclature for the applicant’s illness, which have included identifying it as a schizo-affective disorder as well as Paranoid Schizophrenia, are a matter of emphasis, and of no consequence in relation to the risk of violence posed by the applicant.
Dr Laugharne was of the opinion, and the Tribunal accepts, that:
(a)the onset of the Applicant’s schizophrenic illness antedated the occurrence of the most severe episodes of violence by at least a “couple of years”, and that this accorded with the time scale in other reports by psychiatrists. Dr Laugharne also speculated, based on his extensive clinical experience with refugees who have been exposed to the kinds of severely traumatising experiences experienced by the Applicant that he was also suffering from a Post-Traumatic Stress disorder, which is co-incident with his Paranoid Schizophrenia, and may have antedated it;
(b)schizophrenia is a severe mental illness with a variety of clinical symptoms that include hallucinations and delusion of various kinds. There is no controversy about that or other aspects of Dr Laugharne’s evidence, which was not challenged or contradicted;
(c)a diagnosis of schizophrenia carries with it an increased risk of unpredictable, and potentially violent behaviour; and
(d)in respect of the connection between the Applicant’s mental health condition and his risk of engaging in criminal conduct, Dr Laugharne said:
“I think when he becomes unwell, he loses touch with reality and some of the ideas he develops put him at more risk of offending.”
Dr Laugharne made no attempt to dismiss this risk. What the body of evidence provided by Dr Laugharne and the other available counselling and psychological reports related to was the extent to which the existing and continuing treatment and management regime now in place for his severe mental illness reduces the risk of further dangerous behaviour, now and into the future. The key elements of this beneficial regime are a Community Treatment Order and Guardianship Order.
Benefit of a Community Treatment Order
Currently, the Applicant is subject to a Community Treatment Order with a designated mental health team. That order has already been renewed on one occasion. The Tribunal’s understanding is the Community Treatment Orders lapse after twelve months but can be renewed as required in relation to the extent to which they are deemed necessary. The effect of a Community Treatment Order is to link patients to specific treatment services, and to provide those services with the means to ensure continuity of appropriate clinical care, including medication and other services, by compulsion if required. They therefore minimise the risk of non-compliance with appropriate mental health care, which has been one of the Applicant’s main difficulties thus far.
Dr Laugharne elaborated on the basic philosophy of care involved in the following terms:
“A CTO [Community Treatment Order] is a relatively modern concept so that people can be treated in the community in the least restrictive environment which is always what we aim to do. But there is still obviously power to bring them into hospital if they’re not compliant with the order. So, obviously, you know, I’m telling you what you know. But, I mean, that’s the general principle which is a useful one in treating more people effectively. And the reason for wanting people to be treated in the community rather than coming to hospital in those situations is because, again, it’s better for their overall mental health and wellbeing to be managed in the community and live in the community than to be in a mental hospital.”
100.Dr Laugharne noted that, as the current pandemic demonstrates, there may be a variety of reasons why patients do not wish to comply with recommended medical treatments, but in the presence of a severe mental illness, the freedom of action otherwise accorded to an individual is curtailed. The development of Community Treatment Orders allows the necessary treatment for the mental illness to be continued in the least restrictive possible environment available but can include compulsory hospitalisation if required.
Benefit of a Guardianship Order
The Applicant is also subject to a Guardianship Order, which is also renewable, and this ensures that there a Public Guardian who can monitor the applicant’s behaviour and living arrangements, and advocate on his behalf for access to appropriate psycho-social resources. Guardianship orders can also be regularly renewed.
RISK ASSESSMENT
Dr Laugharne was of the opinion that overall:
“I think that package of care would optimise the situation and mitigate risk as much as one could expect to reasonably mitigate risk.”
103.Patients with severe mental illnesses of the kind suffered by the applicant represent a potential risk to the Australian community. However, the fact that a person may suffer from a paranoid disorder does not necessarily identify such person as a danger to the community. Whether such person constitutes a danger must be predicated upon a determination that the person poses an unacceptable risk, and this determination depends on multifactorial considerations.
104.The range of treatment and management options provided to the Applicant, which will be immediately available if he lives in the Australian community, are such as to reduce the risk of violent behaviour to that of the many Australians with a severe mental illness who are managed with the same range of available treatments, in the same way. These treatment and management resources will continue to be available. It is reasonable therefore to assume that the risk posed by the Applicant will be mitigated to the extent available to the large number of Australian citizens also suffering from Schizophrenia and who continue to live with that illness whilst residing in the community.
105.It has also been the case that the Applicant has been involved in episodes of violent behaviour towards detention centre staff during his period in immigration detention. It was pointed out that the most noteworthy episodes occurred during an extended period of care in what amounted to solitary confinement within the detention centre. No doubt the management of a person with severe paranoid schizophrenia, who is liable to misrepresent aspects of the regime within a detention centre as a repetition of aspects of the deliberately harmful and traumatising experiences that have been accepted as representing grounds for acceptance of a claim for refugee status, is challenging. The risk of inappropriate behaviour related to such misrepresentations would be substantially mitigated by living within the community. As Dr Laugharne testified, release from detention would mitigate the risks created by the detention environment and ensure that the disruptions to care that have occurred within immigration detention would not recur.
CONCLUSION
The unchallenged evidence establishes that the Applicant is suffering from a mental illness. Further the evidence indicates that the mental illness so suffered by the Applicant has been a principal cause of his offending. Although in the context of the consideration of a visa cancellation, the assumption is to be made that the “Australian community would be fair-minded and mature”: see Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23]. To similar effect, in Weti-Safwan and Minister of Immigration and Border Protection [2016] AATA 797 at [50], Member Bygrave made the following observations:
I also consider the deliberation of Australian community expectations involves “bringing appropriate perspective and proportionality to bear in the assessment of risk” and that the “expectations must be considered contextually, relative to factors arising in relation to other principles” set out in the Direction.
It is useful to consider the approach taken by the Courts when applying Direction 90. In the Queen v Keenan [2009] HCA 1 at [132], the High Court emphasised that the “nature and seriousness of the conduct” referred to in paragraph 8.1.1 of Ministerial Direction 90 (which although such Direction is not relevant, it may be seen to apply by analogy on this issue) requires an examination of the nature of the offending.
Kiefel J (as her Honour then was), referring to a decision of R v Barlow (1997) HCA 19 at [61] said at [132]:
The circumstances of the offence, including its result and the state of mind which accompanied it define the offence as one of a particular “nature”. Their Honours explained that the unlawful striking of a blow will constitute an offence, the nature of which depends upon whether the blow caused bodily harm or grievous bodily harm or death and upon the specific intent with which the blow is inflicted.
Accordingly, if the criminal offending results from the impaired mental state of the Applicant, as the expert evidence suggests this weigh heavily in the mind of the Tribunal when making a determination on whether, in new circumstances upon release, the Applicant would constitute a danger to the Australian community. The expert evidence of Dr Laugharne is the effect that this Applicant has had a diagnosed mental illness since 2014. Pre-dating that was the existence of post-traumatic stress disorder which was likely to have been present from the time of his arrival in Australia as a result of his experiencing torture in the Sudan.
The Tribunal notes that many of the offences committed by the Applicant are at the lower end of seriousness. The most serious offences occurred in 2014, namely eight years ago, and the recent offences, namely three offences against detention officers, occurred whilst the Applicant had been incarcerated in isolation for an extended period. The Tribunal considers, based on the evidence, that the period in incarceration is detrimental to the Applicant’s health and serves to remind him of his period in imprisonment in the Sudan. Accordingly, the Tribunal does not consider that the three offences committed against the detention officers in 2020 are necessarily representative of the fact that the Applicant remains a danger, were he released into the community.
The Tribunal has heard oral evidence from the representative of the Public Guardian that the Applicant will have a case worker assigned to him who will arrange for his accommodation and well-being if he is permitted to return to the community. Such case worker will also have the responsibility of ensuring that appropriate medication is administered to the Applicant. Additionally, the existence of the CTO will ensure that appropriate medication is provided and administered to the applicant. Lastly, the possible involvement with The National Disability Insurance Scheme (NDIS) may be another level of ensuring that the Applicant has the best possible care, although the evidence did not establish that the applicant would be entitled to NDIS benefits.
The Tribunal is of the opinion that with the existence of the Guardianship Order, the CTO and the potential assistance of NDIS, the Applicant will be very much supported if he is permitted to return to the community. Such support was not previously available to him and according to the information provided to the Tribunal, optimum treatment will only be available to him in an environment which is suitable, namely in the community. The Tribunal notes the observations of Dr Laugharne in his report dated 5 July 2020 that:
… It is reasonably likely that [The Applicant’s] mental health would improve overall as result of being free from the restrictions of detention.
In the community he would not have the frustrations and psychological triggers of being contained in a detention context and he would have the motivation of re-establishing ongoing contact with his young son.
The Tribunal refers to [31] in WKCG where the Tribunal said:
The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well is a 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 [sic] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present [emphasis in original] 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 the past circumstances and, as Brennan J pointed out (Salazar ALR 38; ALD 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”.
The Tribunal notes that, apart from the offences in 2020, which the Tribunal is satisfied were committed in circumstances which contributed to the Applicant’s aggressive conduct, namely his detention in virtual isolation for three months, the Applicant has committed no criminal offences since 2014.
Whilst the risk of reoffending cannot be eliminated, the Tribunal cannot conclude that, with the controls in place as discussed above, if the Applicant were returned to the community, he would pose a real risk of danger to the community in the future. Expressly, the Tribunal does not find that the Applicant poses no risk; rather, the level of risk proposed, on reasonable grounds, does not rise to the applicant being “a danger to the Australian community”. That is, the Tribunal is unable to conclude, with the control referred to, that the Applicant would pose “present and serious risk”, as was discussed in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs above).
The Tribunal has noted the submissions of the Respondent which refer to the Applicant’s prolonged history of offending and of his uncooperative attitude and attention. However, bearing in mind the expert psychiatric evidence, such conduct can largely be attributed to his initially undiagnosed mental health condition whilst in detention, the exacerbation of his mental state resulting from his detention and sub-optimal mental treatment whilst in detention.
The Tribunal finds that the applicant does not constitute a danger to the Australian community as referred to in section 36(1C) of the Migration Act 1958 (Cth).
DECISION
Accordingly, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration in accordance with a Direction that the Applicant is not considered a “danger to the Australian community” pursuant to paragraph 36(1C)(b).
I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Antill Cowdroy AO KC
.................................[sgd].......................................
Associate
Dated: 4 October 2022
Date(s) of hearing: 18 and 19 July 2022 Counsel for the Applicant: Mr D Bhutani Solicitors for the Applicant: Ms K Bones, Legal Aid NSW Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
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