MHCZ and Minister for Home Affairs (Migration)
[2019] AATA 4259
•21 October 2019
MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259 (21 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0782
Re:MHCZ
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Emeritus Professor P A Fairall, Senior MemberDate:21 October 2019
Place:Sydney
The Tribunal decides that:
1.The reviewable decision, being the decision of the delegate of the Minister for Home Affairs dated 6 February 2019 to refuse the applicant’s XA-866 (permanent protection) visa, is set aside.
2.The matter is remitted to the Minister with a direction that the applicant is not a danger to the Australian community.
...............................[SGD]..........................
Deputy President B W Rayment OAM QC
CATCHWORDS
MIGRATION – refusal of XA-866 (permanent protection) visa – where the applicant convicted by final judgment of particularly serious crime – whether applicant will be a danger to the Australian community if released back into the community – application of WKCG – where mental health issues impacted on offending – whether applicant can receive adequate treatment – question of compliance with treatment and support measure – decision set aside
LEGISLATION
Migration Act 1958 (Cth) ss 5, 5M, 36, 65, 501
CASES
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, (2017) 248 FCR 456
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
DOB18 v Minister for Home Affairs [2019] FCAFC 63
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
NDBR v Minister for Home Affairs [2019] FCA 1631
Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40WKCG and Minister for Immigration and Citizenship [2009] AATA 512
SECONDARY MATERIALS
Ministerial Direction No 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b)
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
Emeritus Professor P A Fairall, Senior Member21 October 2019
INTRODUCTION
The applicant was born in March 1996 in the Janghori district of Afghanistan.[1] He came to Australia as a child on a Class XB Subclass 202 Global Special Humanitarian visa on in August 2010. His father was killed by Taliban extremists in 2008.[2]
[1] Protection Visa Decision Record (“PVDR”): T2, pp 12 and 13.
[2] The sentencing remarks refer only to the killing of the applicant’s father by the Taliban: T5, p 89. The PVDR refers to the applicant’s claim that his father was killed by the Taliban and that he was hit with a rifle butt: T2, p 15.
There is some evidence that he was born in 1994.[3]
[3] His mother told the delegate that she had mistakenly understated the age of each of her three children by two years during the off-shore visa processing: T2, p 13. The delegate declined to adjust the birthdate from 1996 to 1994 on the basis that the Freedom of Information section considered the information provided in the initial visa application.
In April 2015, the applicant was sentenced in the New South Wales District Court on his guilty plea to ten offences committed between October 2012 and January 2014, with five additional matters that he asked to be taken into account.[4] The sentencing judge imposed an aggregate sentence of six and a half years imprisonment with a three-year non-parole period.
[4] Sentencing comments, 16 April 2015: T5, p 77.
In January 2017, the applicant was transferred to immigration detention, having completed the specified non-parole period.[5]
[5] PVDR: T2, p 12.
On 4 October 2016, the Delegate of the Minister for Home Affairs (“the delegate”) cancelled the applicant’s Humanitarian visa under s 501(3A)(a)(i) of the Migration Act 1958 (Cth) (“the Act”). On 25 October 2017, the Assistant Minister made a decision not to revoke the decision to cancel the Humanitarian visa.
The decision not to revoke was made under s 501(CA)(4) which provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The applicant sought judicial review of the 25 October 2017 decision in the Federal Court. The Federal Court dismissed the action.
On 31 May 2018, the applicant applied for an XA-866 (permanent protection) visa.
On 6 February 2019, the delegate rejected the application. It is the refusal to grant this protection visa that constitutes the “reviewable decision” that is now before the Tribunal.
The delegate’s reasons for rejecting the application are set out at length in the Protection Visa Decision Record (“PVDR”).[6] The delegate proceeded in accordance with Ministerial Direction No 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b). The Direction sets out the order in which decision-makers are to consider elements of the protection visa assessment for applicants who raise character or security concerns.
[6] PVDR: T2, p 49.
The delegate conducted a careful examination of the applicant’s claim for protection. He was duly satisfied that the applicant:
(a)Is a citizen of Afghanistan and is not a citizen of any other country;
(b)Is an ethnic Hazara and a moderate follower of the Shia branch of Islam and can be identified as such in Afghanistan;
(c)Has no known family or communal support in Ghazni or other parts of Afghanistan;
(d)Is suffering from severe mental illness and, if not adequately medicated, is prone to display aberrant and aggressive behaviour that may lead to violent criminal offending;
(e)For these reasons, and due to the grave security situation in Afghanistan, he genuinely fears being harmed or killed if he is returned to his country.
The delegate found that the applicant did not satisfy the requirements of s 36(1C)(b) of the Act. By reference that that subsection, he determined that the applicant was a danger to the Australia community. The delegate therefore refused to grant the visa, as he was required to do under those circumstances by s 65(1)(b) of the Act.[7]
[7] PVDR: T2, p 12.
On 11 February 2019, the applicant applied to the Tribunal seeking review of the delegate’s refusal to grant him a protection visa.[8] In these proceedings, we are required to determine whether the specified criterion under s 36(1C)(b) of the Act is satisfied.
[8] T1, pp 1–7.
The question, and indeed the only question that is now before us, is whether the applicant is not a person whom we consider, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
LEGISLATIVE FRAMEWORK
Section 36 of the Act provides:
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:
…
(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
…
Section 5M provides:
5M Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a)a serious Australian offence;
…
“Serious Australian offence” is defined in s 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.
Section 65 provides:
65 Decision to grant or refuse to grant visa
(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a)if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b)if not so satisfied, is to refuse to grant the visa.
PRELIMINARY MATTERS
At the outset, we make some preliminary observations. First, in these proceedings we are not required to balance the danger to the community against the possible harm to the applicant if returned to Afghanistan: SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 at [27]. In determining whether the Tribunal is satisfied that the applicant is not a person whom it considers, on reasonable grounds, is a danger to the Australian community, the Tribunal is not exercising a discretionary power (unlike the power provided for under s 501): MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 at [29]–[32]. If we consider, on reasonable grounds, that the applicant is a danger to the Australian community, we must affirm the delegate’s decision. Section 65 of the Act requires that if the Tribunal is not satisfied that the criteria for the visa prescribed by the Act or the regulations have been satisfied, then it is required “to refuse the visa”: see also BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, (2017) 248 FCR 456, at [48] and [49].
Second, the words “having been convicted” in s 36(1C)(b) do not limit the inquiry to danger of a kind associated with the previous offending behaviour. We accept the statement by Deputy President Tamberlin QC in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (‘WKCG’) at [29]:
Of course, the nature and circumstances of the conviction or convictions will generally be highly relevant to the question whether the person can be described as being a “danger”. However, it is not conclusive. 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.
Events that have transpired since the offending are relevant to the assessment of dangerousness, especially so where, as in the present case, substantial time has elapsed – nearly six years – since the offending in question. The assessment of danger is at large, and based on an assessment at the time of the hearing.
Third, the Tribunal is required to identify an unacceptable level of risk for the Australian community, not merely the community of fellow detainees and staff within the immigration detention centre. An environment controlled by custodial officers, where the conduct of detainees is monitored and highly constrained, is an artificial environment, and not reflective of the world outside immigration detention. The applicant has spent his entire adult life in custody whether in prison or in immigration detention, and prior to entering detention his mental illness was neither fully diagnosed nor stable.[9] It was accepted during argument that, regardless of the outcome in the present hearing, the applicant is not expected to leave immigration detention soon. There will be further immigration processes to complete. Nevertheless, focusing exclusively on the detention environment would distort the task that lies before us.
[9] Sentencing comments, 16 April 2015: T5, p 91.
Fourth, “danger to the Australian community” is not limited to the potential for purely physical harm. Counsel for the respondent suggested that emotional and physical harm are both forms of harm, and that the matter could be determined by reference to potential emotional harm to a third party.[10] We accept that some forms of extreme emotional harm might fall within that description; hurt feelings or embarrassment or extreme awkwardness would not.
[10] Transcript, 8 August 2019, p 50.
Fifth, the impression conveyed by observation of the applicant and his witnesses at a hearing open to the public is critically important in the assessment of risk. In Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at page 101, Brennan J (as he then was) as President of the Tribunal, observed:
In assessing the level of risk in a particular case, the circumstances surrounding the offence, the lifestyle of the offender, and the confidence which may be reposed in the evidence called by the offender are material. Oftentimes the circumstances deposed to will not be susceptible of verification, and much will depend upon the impression conveyed by the offender and his witnesses. (emphasis added)
THE ASSESSMENT OF DANGER
There is a further foundational matter, but it is of sufficient importance to warrant separate discussion. The delegate relied explicitly on WKCG in forming his view that the application was a danger to the Australian community, where the learned Deputy President said:
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 Article 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.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 the 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 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. (emphasis added)
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.
Deputy President Tamberlin QC was appointed to the Tribunal upon retirement as a federal court judge. As noted by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63, his Honour came to the Tribunal with a high reputation. Although his checklist of relevant particulars is sometimes referred to as a “test”, it is really no more than a checklist of relevant considerations where the question of dangerousness has arisen because a person has been convicted of a particularly serious offence. Some of those considerations relate to the offending, its nature, extent, whether there are prior crimes, and so on. There may be other considerations. Although the delegate referred to this decision as involving a “test”, there is nothing to suggest that Deputy President Tamberlin QC thought of this checklist as an exhaustive list, or that the inquiry should be narrowed to focus exclusively on the nature of the offending, for he emphasised in the passage quoted above, at [25] that:
In deciding the question, regard must be had to all the circumstances of each individual case.
WKCG killed a man in a bar room fight, was charged with murder and convicted of manslaughter. Some seven years after his release on parole, he was convicted of various drug offences including supplying cocaine. In other words, the relevant conduct was bracketed by two serious offences widely separated in point of time. The objective harm reflected in the individual offending was very high. WKCG was not a young adult and there was no evidence of mental illness. The Tribunal found that WKCG was not a danger to the community.
In BHYK and Minister for Immigration and Citizenship [2010] AATA 662 the applicant had been sentenced for manslaughter in relation to the death of his de facto spouse. He committed various other offences against the person as well as serious drug offences. There was evidence that he suffered from antisocial personality disorder. The Tribunal found that he was a danger to the community.
In the present case there is material before us pointing to a connection, acknowledged by the sentencing judge, between the offending and the applicant’s mental illness. Nothing in WKCG suggests that such material should not be given appropriate weight in assessing whether the applicant is a danger to the community. The nature of the offending and the fact that the applicant has been convicted of serious criminal offences is the starting point of our inquiry; but we are obliged to consider all aspects of the case, including the substantial record of mental illness, in reaching a final conclusion on the question of dangerousness.
The perception of the degree of risk or the probability of harm to the community lies at the heart of issue of dangerousness. In WKCG the learned Deputy President stated:
30.Counsel for the applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a “real probability” of harm being caused to the community.
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 delegate in the present case referred specifically to this aspect of learned Deputy President’s comments. He said:
Should the applicant be released back into the community at this juncture, I consider on reasonable grounds that the applicant will be a danger to the Australian community.
In reaching my conclusion, I have applied the WKCG test. I have also had regard to there not being a requirement to establish that there is a probability of a real and immediate danger of present harm, and that the provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future.[11]
[11] PVDR: T2, p 48, citing BHYK and Minister for immigration and Citizenship [2010] AATA 662.
We note that this important question as to the requisite degree of risk was the subject of comment by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63. Although strictly obiter, the learned judge considered the issue at length: see [76] to [87]. Paragraphs [83] and [87] are extracted here:
83. In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG 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 that just “risk”. (emphasis added)
…
87.Other difficulties about an uncritical acceptance of all that is stated in WKCG arise from that part of the passage quoted to which I have given emphasis. That there is a “danger” is, necessarily in my view, a conclusion based on an assessment of the present “level of risk”. But that does not mean that the word, “danger” carries a meaning that differs from case to case. Its meaning is fixed, but whether it is present in respect of, materially, a person applying for a protection visa will depend on the circumstances of the given case. Further, the reference to “a lesser degree of satisfaction than that required by the expression “probable” antedate and are inconsistent with the observations made by Flick and Perry JJ about administrative fact finding in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555. The state of satisfaction in respect of the subject to which s 36(1C)(b) of the Act is directed must be one reasonably open on the evidence before the Minister, not one which “no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, at [130] per Crennan and Bell JJ. With respect, to use the word “probable” in relation to administrative fact finding is to borrow “from the universe of discourse which has civil litigation as its subject”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 282 (emphasis added).
In the present case, counsel for the respondent asked us to find against the applicant if we are satisfied that the risk to the Australian community presented by his release rose no higher than the possibility of some harm.
We are not comfortable with the notion that a person may be treated as a present danger to the community merely because one cannot discount the bare possibility that some harm may occur in the future.
In our view, a level of risk is unacceptable if the evidence before the Tribunal points to a present and serious risk, neither remote nor fanciful, of physical harm, or extreme emotional harm (in the sense explained above), to some member or members of the Australian community. The expression “neither remote nor fanciful” is intended to exclude the ordinary hazards of life; the reference to extreme emotional harm is intended to exclude matters of upset, distress or embarrassment, which do not properly fall within the area of relevant harm.
THE OFFENDING BEHAVIOUR
As noted above, in August 2010 the applicant entered Australia on a Global Special Humanitarian visa, probably as a 14 year old.[12] In Sydney, he attended language classes and learnt to speak English. He had received no schooling to speak of in Afghanistan or Pakistan.
[12] PVDR: T2, p 12. He may have been 16. It is not clear on the evidence.
There is some material to suggest that he worked for about eight months in a warehouse in Sydney in 2011.[13] In late 2011 or early 2012, he travelled to Perth to look for work. He worked at a supermarket collecting trolleys.
[13] Sentencing comments, 16 April 2015: T5, p 89.
The record contains little about the conditions of his life. There is no record of any familial support in Perth.
In February 2012, he was admitted to a hospital in Western Australia. This followed an incident where he was arrested for disorderly behaviour arising from an argument with one or more Afghans at a pizza shop, and then not sleeping for two days whilst in police custody.[14] He was taken to a juvenile remand centre. Given the nature of his behaviour, he was transferred to the Adolescent Unit of the hospital. Charges were not laid. He was diagnosed with “bipolar affective disorder, current episode manic with psychotic symptoms”. This is a serious psychiatric disorder characterised by an alternating of manic and depressive episodes. He was treated with both antipsychotic and mood-stabilising medication.
[14] Forensic Report by Dr Elliott, 9 April 2015: T32, p 179.
In April 2012, he was discharged from the hospital.[15] The discharge letter states:
Referral has been made to the [a] Psych Service. [The applicant] will require monitoring of his medication and mental state, particularly in view of his poor insight and preference to cease medications. He will also require administration of zuctopenthixol decancate as noted above.
[15] Bentley Hospital Inpatient Discharge Letter: T32, p 48.
The applicant made his way back to his family in Sydney. It is not clear by what means he travelled there. Later in April 2012, he was admitted to a psychiatric hospital in, referred by his General Practitioner. He was diagnosed with Bipolar Affective Disorder with psychotic features. In May 2012, he was discharged.[16]
[16] NSW Health, Mental Health Transfer/Discharge Summary: T32, p 49.
Over a two week period, between October 2012 and November 2012, he engaged in serious criminal misconduct, aimed at depriving people of their mobile phones. This gave rise to seven offences in all – three counts of larceny, a count of intimidation, a count of assault occasioning bodily harm and two counts of robbery whilst armed with an offensive weapon. He was granted to bail and the matter was set down for hearing.[17]
[17] Sentencing comments, 16 April 2015: T5, p 77.
The offending is summarised in the respondent’s Statement of Facts, Issues and Contentions as follows:
6. [In] October 2012, the applicant … took possession of [a] person’s phone; when the person requested their phone back, the applicant told the person to go away ‘in a crude fashion’ and then ran away. This led to his conviction of larceny under s 117 of the Crimes Act 1900 (NSW) for which he was given an indicative sentence of a s 9 bond for 14 months.
7. [In] October 2012, the applicant asked to use a person’s phone and then refused to return it. When the person requested his phone back, the applicant told the person he was a bikie, and asked him where he wanted to be shot. He then put his hand in his trouser pocket to pretend that he had a gun. This led to further convictions of larceny and intimidate with intent to cause harm under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) for which he was given indicative sentences of a s 9 bond for 14 months and 5 months’ imprisonment respectively.
8. [In] November 2012, the applicant took another person’s phone purportedly to make a call, but never returned the phone. When the person followed the applicant and requested that he return the phone, the applicant punched him in his face and the back of his head, and bit him… This led to his third conviction of larceny and assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 (NSW) for which the applicant was given indicative sentences of 2 months’ imprisonment and 1 year and 2 months’ imprisonment respectively.
9. [In] November 2012, the applicant approached a man and requested to use his phone. The man refused. The sentencing judge described what then followed in these terms:
At one point the two men were facing each other and [the applicant] produced a knife, like a Swiss knife, with a blade of between 5 and 10 centimetres. [The applicant] demanded the phone and threatened to stab [the victim] if [he] did not comply. [The applicant] held the blade close to [the victim’s] stomach. [The victim] offered [the applicant] cash instead of handing over the phone. [The applicant’s] response was to grab [the victim], demand the phone and again threaten to stab him. [The applicant] then took [the victim’s] phone and walked away.
[The victim] followed the offender and again asked for his phone. [The applicant] responded by repeating his threat to stab [the victim]. At this point, [the victim] stopped following the offender.
This led to the applicant’s conviction for robbery while armed with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW) for which he was given an indicative sentence of 2 years and 8 months’ imprisonment.
10. [In] November 2012, the applicant approached a person in a park as part of a group of 5 men (including the applicant). The applicant demanded the person’s phone. He then produced a blade of about 20 to 30 centimetres. The person then, afraid he would be stabbed, handed over his phone. This led to a further conviction of robbery while armed with an offensive weapon for which the applicant was given an indicative sentence of 4 years and 11 months’ imprisonment.
11. [In] November 2012, the applicant took another person’s mobile phone. This was a further matter of larceny. It was taken into account in sentencing with the applicant’s … November 2012 offending. When that person tried to grab their phone back, the applicant pushed him away and produced a pocket knife with a 5 to 10 centimetre blade and said some threatening words to the person. This was a further matter of being armed with a weapon with intent. It was taken into account in sentencing with the applicant’s … November 2012 offending.
12. The applicant was arrested and granted bail [later in] November 2012.
In March 2013, the applicant was again admitted for almost two weeks to a hospital.[18]
[18] Forensic Report by Dr Elliott, 9 April 2015: T32, p 179.
The applicant’s offending behaviour escalated over the summer of 2013. He committed an offence of robbery in company with one associate in October 2013, and offences of robbery in company with three associates in January 2014. His co-offenders were said by the judge to be about five years older than he then was.
The offending is summarised in the respondent’s submission as follows:
13. [In] October 2013, the applicant was with another man. The other man approached the victim. The victim became scared because he saw an object shaped like a gun under the other man’s shirt. The remarks of the sentencing judge state that the following occurred:
[The victim] then ran towards [a] station. In his attempt to escape, his path was blocked by [the applicant]. When [the applicant] blocked [the victim’s] path, the first man grabbed [the victim] by his left shoulder from behind. [The applicant] then grabbed [the victim] by his right shoulder.
[The victim] was by this stage very scared and was being held so tightly by the two offenders that he could not leave.
The first man then asked [the victim] why he was running and told him there was no need to be scared. Both offenders, however, then pushed [the victim] up against a brick wall. [The applicant] then placed his hand in [the victim’s] pocket and took his wallet after which [the applicant] ran off. [The victim] tried to run after [the applicant] but was blocked by the first man who lifted his shirt and pointed to the handle of a gun on the left hand side of his waist. [The victim] on seeing this gun became terrified for his life and was extremely shaken.
This led to the applicant’s conviction for robbery in company under s 97(1) of the Crimes Act 1900 (NSW) for which he was indicatively sentenced to 3 years’ imprisonment.
14. [In] January 2014, the applicant was with 2 other men who approached the victim and put hands over his mouth and eyes. They claimed to be ‘the cops’. They demanded his bag and punched him in the stomach. They then went through the contents of his bag. This led to a further conviction of robbery in company under for which he was given an indicative sentence of 3 years’ imprisonment. It also related to a matter of ‘dishonestly obtaining a financial advantage by deception’. However, the sentencing judge considers that the facts here barely made out the alleged offence.
15. [In] January 2014, the applicant was in company with 2 persons who put a victim into a headlock, and punched him in the face. While the victim was being punched in the face, the applicant went through his pockets and took property including a smart phone and his wallet. This led to his third conviction of robbery in company for which he was given an indicative sentence of 3 years and 7 months’ imprisonment. Later that night, the applicant was in company with the same two men, who held a knife near another victim’s face, and took the victim’s 2 backpacks; they later took another man’s wallet and smart phone. These were 2 robbery in company matters.
In April 2015, Judge Colefax QC sentenced the applicant to six and a half years’ imprisonment, with a non-parole period of 3 years.[19] The applicant was sentenced on the basis that he was born in 1994, and therefore nineteen when he committed the second set of offences.[20]
[19] Sentencing comments, 16 April 2015: T5, pp 93 to 95.
[20] Sentencing comments, 16 April 2015: T5, p 89.
As noted at the outset, according to departmental Commonwealth records he was born in March 1996 and therefore at most seventeen when he committed the offences in question.[21] This is a troubling disparity. We put this no higher. We do not seek to impugn the facts upon which the sentence was based and have no mandate to go behind the judge’s sentencing remarks. Indeed, to question the factual basis upon which the judge sentenced the applicant would be a reviewable error.[22] We note merely that the sentencing judge was of the view that the age gap between the applicant and his co-offenders was significant and relevant to the issues of recidivism and rehabilitation. The judge commented that his co-offenders on the second cluster of offences were five years older than him, putting them at around twenty-four. According to Commonwealth records, the applicant was then only seventeen. There is no evidence before us as to whether this disparity was drawn to the attention of the sentencing judge.
[21] Sentencing comments, 16 April 2015: T5, p 64
[22] See NDBR v Minister for Home Affairs [2019] FCA 1631 at [49]–[52].
There is another aspect of the sentencing remarks worth noting. The judge had before him a report from a psychologist Mr Green dated 8 April 2015, which he commended for its objectivity.[23]
[23] T32, p 165.
Mr Green had said, in paragraph 75:
In my opinion, the most likely explanation of [the applicant’s] involvement in the offences lies in a combination of two factors. The first, I suspect he was experiencing some form of uncontrolled manic episode whilst offending, and the second that he was associating with the likes of [X], [Y] and [Z], who took advantage of him for their own ends and influenced his behaviour. [The applicant] had poor judgment emanating from his mental illness and acceded to their demand that he provide mobile phones and accompany them whilst robbing. His irritability from his mania may have been a factor in his aggressive behaviour, including violent behaviour.
The judge expressed some scepticism as to whether mental illness was a complete explanation for the totality of conduct. His Honour said:
…I am not satisfied that on the balance of probabilities that there is a direct causal connection between the psychiatric condition and this offender’s criminal offending. As a result considerations of specific deterrence remains significant. In stating this, I have not overlooked paragraph 75 of Mr Green’s report.
Whilst the first cluster of offences (that is, the first to seventh inclusive) could be the subject of some form of uncontrolled manic episode, as speculated by Mr Green, I find it difficult to accept that the totality of the conduct spanning from late October 2012 to January 2014 without detailed reasoning to that effect, is capable of being so explained.
Unfortunately, on this point, the court did not have before it a forensic report dated 9 April 2015 prepared by a psychiatrist, Dr Elliott, especially for the hearing. The report was prepared at the request of the judge who was at an earlier time listed to hear the matter.[24] There is no mention of it in the sentencing remarks.[25] If it were not before the sentencing judge, it is most unfortunate, for it may have provided the “detailed reasoning” which the judge was seeking in relation to the second cluster of offences.
[24] T32, p 178. It may be that when the docket judge was changed from Judge Sides (to whom the report is addressed) to Judge Colefax QC the report went astray. In rejecting the applicant’s visa application, the Minister’s delegate was also unable to find a copy of Dr Elliott’s report: see T2, p 40 and 45.
[25] T32, p 178.
Dr Elliott’s report was placed before us, and we refer to it below.
The judge went on to say that he agreed with Mr Green that the applicant is at risk of re-offending. The risk was “moderate”; the main risk factor being his association with antisocial individuals taking advantage of his poor judgment because of his mental illness.
The learned judge concluded by saying that he regarded his prospects for rehabilitation as being “cautiously reasonable”. [26] Regrettably, the opportunity to test the judge’s cautious optimism has not arisen because the applicant has been in custody throughout the six years post sentence.
[26] Sentencing comments, 16 April 2015: T5, pp 91 and 92.
THE HEARING
The Tribunal, consisting of a two-person panel, conducted a four day hearing on 8 and 9 August 2019, and on 11 and 13 September 2019. The applicant gave evidence on his own behalf. In addition, his mother, his brother (MAH), and psychiatrist Dr Rafe Pulley also gave evidence before us. The respondent did not call any evidence.
The applicant’s clinical and psychiatric records, both before and after the offending, were presented to the Tribunal, from which we were able to form judgments as to his level of insight and understanding, the effectiveness of his medication, and the effectiveness of mental health services both in the immigration detention and in the community.
We were also provided with evidence of the extent of ongoing family support and the degree of professional support available to him in the future.
The applicant gave evidence for three hours over two days. We therefore had the opportunity to observe him closely. He was for the most part calm and attentive throughout the four day hearing. He was not restrained in any way.
He was examined in chief and cross-examined in depth across the field: about his family’s flight from Afghanistan and arrival in Australia, his offending and his attitude towards it, why it occurred, whether he was remorseful, his degree of insight into his mental illness, levels of compliance with treatment plans, and his behaviour in detention. He was also questioned about his relationship with his siblings and mother and his expectations and hopes for the future.
He was asked why he left Afghanistan and came to Australia. He answered as follows:
I left Afghanistan because my father got killed by Taliban, and we left - not only me. My whole family left, … left Afghanistan. They - we got threat from Taliban that we have to live (indistinct) the area in the country and that otherwise we’re going to get killed. They’re going to come - come back to us. And when my father got killed, my father body was - came to my house and then I saw my dead father body and then the Taliban hit me with the butt of the gun. And then after that, we got threatened from Taliban that we have to leave the country or we have to leave the area. So - and then we come to Pakistan. After that, we come – [27]
[27] Transcript, 8 August 2019, p 69.
He was asked why he committed the offences. He answered as follows:
Applicant:As I said, I had a mental issue at that time. I was not feeling well at that time. I stopped my medication at that time. Plus, I thought I’m feeling well, and I stopped my medication. I was unwell at that time. I was young at that time. Now, I’m grown up. Now I know what I’m doing. Now I know what’s right and what’s wrong. I learned my lesson now from my mistake and that’s in my past. At that time, I was 16 years. Now I’m 23.
Counsel:I just ask because it - - -
Applicant:It’s a big difference from back then until now. Now I’m 23. Now I learned my lesson. I don’t think so I’ll repeat my mistake – the same mistake again. At that time, I was only 16 years old. I was young and I done robbery and I was running around with a bad company and they teach me to do robbery and stuff.
Counsel:So, you were taking what appeared to be about six phones and then were you selling them or trading them to other people?
Applicant:Selling them, selling the phones, yes.
Counsel:Is that – so, were you getting money from selling the phones?
Applicant:I was – yes, I was getting money selling the phones, but I was not – I wasn’t doing robbery to sell the phone and feed my family from that. I was selling for my own pocket money to spend somewhere, like I was in that – because I was unwell at that time. I was not well.[28]
[28] Transcript, 11 September 2019, p 41.
The applicant was cross-examined in depth about a number of incidents in immigration detention where he had been non-compliant with medication or had acted aggressively towards other individuals. The applicant said that he had been threatened on several occasions both by guards and other detainees, and because of his short stature he had to “talk tough” in order to protect himself, but it was “just talk”. He became somewhat agitated when recounting the “bashings” he claimed to have received within detention.
The applicant’s mother
The applicant’s mother gave evidence before us. She explained that due to her lack of education she had a poor understanding of her son’s mental health problems but that her understanding had improved. She came across as a loving mother with significant health and adjustment challenges, doing her best for her family.
She was asked about the bail conditions imposed after the first set of offending and said:
Counsel:…, did the bail conditions require him to live with you at that time?
Witness: So that condition was that he shouldn’t any more committed any other crime an any crime and he went like without my awareness, I didn’t know about that and he went out and he did, so I didn’t know about that.
Counsel: Did you try and do anything to stop him from committing any further crimes?
Witness: Yes, as a mother I was, like I (indistinct) him that I told him, don’t fight or don’t do any crime and be careful that shouldn’t do any crime, I told him.
Counsel: And why do you think that didn’t work?
Witness: Because he had health problems and I didn’t know about that.[29]
[29] Transcript, 11 September 2019, pp 78 and 79.
The applicant’s brother (MAH)
The applicant’s brother, MAH, also gave evidence at the hearing. He is 21 years old. MAH gave evidence as to his educational background, including the fact that he went to a selective school and graduated as vice-captain.[30] He was studying first year medicine but transferred to nursing so that he could fast-track his employment. He expects to complete a Bachelor of Nursing degree in 2019. He wants to work as a psychiatric nurse. He chose this path so that he can better help and understand his brother, the applicant. MAH was asked whether his career choice had been influenced by his brother’s illness:
Counsel:did your brother’s situation have anything to do with your choice of that?
MAH:Certainly, that was another thing that - at that particular moment that I was arrived in the middle of my HSC, basically in 2014, I was in my year 11. That was a time for me to select my career, like to what where am I going to go. And my brother’s mental health had a big impact on me, that what am I going to do, so that interested me more to be involved in healthcare. So that led me to come in health and so I can help my family first, my brother, my mum, and also those around me.[31]
[30] Transcript, 11 September 2019, p 62.
[31] Transcript, 11 September 2019, p 63.
He was asked about his present nursing studies:
Counsel: And what do you do?
MAH:I’m a … support worker at a disability organisation. I work with people with autism and Down syndrome, intellectual disability.
Counsel:Is that an NDIS?
MAH:Yes, it’s NDIS support.
Counsel:I see. Now, I noticed you’ve been listening carefully to the evidence in this case?
MAH:Yes.
Counsel:And particularly, I guess, to Dr Pulley. Is that right? What do you intend to do if your brother is released into the community, for him?
MAH:Well, looking at my family I will be the first person to provide the most care for my brother.
Counsel:Yes?
MAH:I have to - if he was released to come, he would obviously live with us and then I will get in contact with the doctor, Dr Pulley, and - - -
Counsel:With Dr Pulley?
MAH:Yes. And then work on a plan for him. So obviously they will continue his medication and also decide on healthcare also develop on his social skills, because he’s been away for this many years from the community. Build up, we have a social network in our Afghan community. So, I’ll get him involved in that and also I’ll look into employment. There is promised employment by one of our family friend as a - in a painting and they actually broke down that he doesn’t have to start with professional painting, we can teach him based on his capabilities. Yes…[32]
[32] Transcript, 11 September 2019, p 64.
MAH impressed us as a very credible person who was determined to provide as much assistance as he could to his brother and was taking practical steps to do so.
Dr Rafe Pulley
Dr Pulley gave evidence over two days for almost 5 hours. He is an experienced forensic psychiatrist. His evidence was detailed, considered, and of considerable assistance. Dr Pulley was highly critical of the psychiatric treatment provided to the applicant during immigration detention. He was particularly critical of the frequency of consultations and some of the diagnostic labels applied to the applicant by medically trained staff at the detention centre.
During his second day of testimony, Dr Pulley described the risk assessment exercise that he had undertaken in relation to the applicant. His conclusion was as follows:
[I]f I was assessing him to be released from a medium secure unit, or a high secure unit, to the community I would come to the conclusion that he poses no significant risk of endangerment to himself or others if he was to be released into the community and follow a reasonable management plan, I am of the opinion that he is more - very likely to follow a reasonable management and that he'll be - and that particularly reassured by the fact that his family will strongly encourage him to follow the same plan, and actually will have skills in - in speaking to someone with a mental illness and helping someone with a mental illness calm down and accept a good plan when they're wound up, you know.[33]
[33] Transcript, 11 September 2019, p 9.
Dr Pulley provided an overview of the sort of mental health services that would be available to the applicant in the community. He described those facilities and services as world class, or at least as good as anywhere else, although he offered that they could always be improved. He opined that up to 2% of the general population suffered from bipolar-affective disorders and might require such support services from time to time.
As to ongoing community assistance, which would be available to the applicant, he referred to the community mental health team, which would be available to him closer to home, as part of the New South Wales public mental health system. These teams provide not only crisis intervention, but also support to patients such as the applicant in group sessions, educating them about the consequence of their condition.
Importantly, Dr Pulley said that he was willing to take the applicant on as his private psychiatrist. He was confident that, with the assistance of his family (by which we understood him to mean his brother in particular) it would be possible to manage him as a private patient, if he were released into the community. The applicant’s brother told us that Dr Pulley would be engaged for that purpose.
RISK ASSESSMENT
Mental illness
The Minister’s delegate accepted that the applicant was suffering from an ongoing severe mental illness and that, if untreated or not adequately treated, he experienced psychotic episodes resulting in “loss of inhibition of behaviour, agitation, over-confidence, risk-taking behaviour, aggression, outburst of violence and lack of consideration of negative consequences or outcomes”.[34] The delegate stated that:
The applicant suffers from a grave and complex mental health condition that arguably is more difficult to identify and manage than PTSD, anxiety or depression disorders which are the prevalent mental health problems in Afghanistan.[35]
[34] PVDR: T2, p 20, quoting from a report prepared by Dr Pulley.
[35] PVDR: T2, p 27.
Dr Elliott’s 9 April 2015 forensic report confirmed that the applicant was suffering from a serious mental illness, and that he was capable of being treated in the community. He also referred to the additional possibility of early developmental trauma.
Dr Elliott interviewed the applicant three weeks before the sentencing hearing. He noted that the applicant had been initially assessed in custody by a Psychiatric Registrar on 3 February 2014, who noted the previous bipolar diagnosis and cleared him to the main population with mood stabilising medication. He was seen by psychiatrists twice in February, again in May, then in July 2014. On those occasions, there was no evidence of ongoing mood disturbance. On 15 October 2014, he was seen by Dr Fay, who noted some deterioration and considered that he was suffering from schizo-affective disorder, a chronic psychotic illness with a prominent mood component rather than bipolar affective disorder. She increased his aripiprazole dosage. She saw him again on 17 November 2014 and persuaded him to recommence his medication. In the New Year, he started to self-harm by superficial cutting. There is reference to him being assaulted by other inmates. He was depressed and she commenced antidepressant medication. She saw him again on 24 February 2015 and noted he continued to voice suicidal thinking.
In late February, he was transferred to the Mental Health Screening Unit (MHSU) and was seen by Dr Nguy, a consultant psychiatrist, who noted his history and reported his history of trauma in Afghanistan, including his father’s killing. Dr Elliott reports:
… Dr Nguy’s impression was that, notwithstanding [the applicant’s] background diagnosis of bipolar affective disorder, his presentation at that time was more consistent with maladaptive personality traits and pseudo hallucinations. Dr Nguy did not consider [the applicant] was then presenting with features of pervasive depressed mood or any active psychotic symptoms. He did however consider him an ongoing risk of deliberate self-harm. On review on the 2 March 2015, Dr Nguy’s impression appears to have strengthened that [the applicant] had a borderline personality disorder with additional narcissistic traits and was then exhibiting pseudo hallucinations and poor coping strategies. He continued him on his mood stabilising and antipsychotic treatment. This remained Dr Nguy’s impression on further comprehensive review on the 12 and 19 March 2015, he considered that [the applicant] had a very low frustration tolerance and that [the applicant’s] maladaptive coping strategies were more prominent at the time of court appearances.
Dr Elliott concluded:
[The applicant] has a diagnosis of bipolar affective disorder. This appears a conclusive one given his history of two psychiatric hospital admissions during which he exhibited obvious abnormal elevation of mood coupled with frank delusional beliefs of a persecutory and grandiose nature.
[The applicant] also has an uncorroborated history of severe, early developmental trauma suffered whilst in Afghanistan. He also did not receive any schooling and is a relatively recent refugee to Australia. His behaviour since his reception into custody suggests a regression to maladaptive coping strategies, including deliberate self-harming behaviours and non-compliance with recommended psychiatric treatments. His medical record tends to suggest his behaviour since his reception into custody has been dominated by these maladaptive personality traits and he does not appear to have suffered a further relapse of his bipolar affective disorder since coming into custody.[36]
[36] T32, p 184.
This appears to be the first psychiatric comment on the impact of this “early developmental trauma” in being a victim of the Taliban and seeing his father killed. Overall, Dr Elliott appears to agree with Dr Nguy’s assessment rather than that of Dr Fay. His comment that he “does not appear to have suffered a further relapse of his bipolar affective disorder since coming into custody” is certainly at odds with the assessment of Dr Fay that he had developed schizo-affective disorder, a chronic psychotic illness with a prominent mood component, since being in custody.
Dr Elliott considered that the applicant’s bipolar condition was relatively stable since admission and would not warrant admission to a mental health facility. He was however clear that the applicant was in need of ongoing psychiatric care, and said that:
[I]f the court is considering a non-custodial disposition, then I respectfully suggest he could be referred to his established community treatment team at [a] hospital under section 32 of the NSW Mental Health (Forensic provisions) Act. This order should include conditions he attend all appointments with his designated psychiatrist and case manager. He should also be compelled to comply with all recommended psychiatric medications including long acting injectable antipsychotic medications if these are deemed necessary.[37]
[37] T32, pp 184 and 185.
We also refer to a report dated 15 October 2018 prepared by Dr Pulley for use by the applicant in the visa application process, where Dr Pulley stated:
[T]here is no doubt that your client suffers from severe mental illness, specifically schizoaffective disorder. Your client experiences chronic fluctuating psychotic symptoms including auditory hallucinations that are commands, derogatory and persecutory in nature, thought disorder, persecutory delusions and grandiose delusions. There has been a psychosocial decline, in that your client was able to maintain employment for a period of six months prior to the onset of his mental illness. Your client also has experienced clearly documented, extended and pervasive periods of elevated moor and depressed mood.[38]
[38] Report by Dr Rafe Pulley, 15 October 2018: T24, p 300.
As noted above, Dr Pulley gave detailed evidence at the hearing before us. He was highly critical of the suggestion that the applicant was suffering from a borderline or antisocial personality disorder and considered that there was no diagnostic validity in such labelling, there being no evidence of anti-social tendency during early teenage development. The evidence pointed strongly in the opposite direction as evidenced by the applicant’s desire to work and support his family and the strength of intra familial bonds.
We accept that the applicant is afflicted by a serious psychiatric condition with fluctuating symptomatology, and that these symptoms are capable of being controlled with appropriate medication. It is not necessary in these proceedings to settle on a precise diagnosis, although we note the general consensus amongst treating psychiatrists that he suffers from a bipolar affective disorder.
Behaviour
The delegate noted:
Throughout his imprisonment and detention, the applicant was involved in a series of security incidents – both as perpetrator and a victim. The list of incidents involving threats and actual violence is far too long to be reproduced in this decision record. It suffices to say that he assaulted detainees and inmates, threatened detention staff with violence and was assaulted by other detainees. He also displaced many instances of grandiose delusions such as claiming that his father is the ‘kind of Australia’ and that he is a ‘millionaire’ and that Donald Trump is father.[39]
[39] PVDR: T2, p 38.
The delegate said that the following issues were most critical for considering issues of recidivism:
(a)Will the applicant receive adequate treatment and support, including family support and employment, to prevent recurrence of offensive behaviour?
(b)Will the applicant comply with his treatment and necessary restrictive measures?
(c)Are there any factors in the applicant’s surroundings that may foster anti-social behaviour?
We accept that the factors identified by the delegate provide a useful way to consider the evidence.
A. Adequacy of treatment and support
During the hearing, we were presented with a detailed and careful review of the applicant’s treatment records from 2012 to 2018.[40] He has access to some psychiatric services in immigration detention.
[40] PVDR: T2, pp 40–45.
During examination, Dr Pulley expressed the view that the level of psychiatric support provided to the applicant in immigration detention was inadequate and that he had been mislabelled and stigmatised. The episodes of occasional aggression were explicable in terms of genuine fear, anxiety and poor quality medication, together with the inherent difficulties associated with establishing the correct pharmaceutical treatment regime for a complex psycho-affective disorder.
The delegate noted Dr Pulley’s comment that ‘with education and engagement the applicant has developed a more positive attitude to treatment’ and that ‘he will cooperate with treatment’ and that ‘ongoing detention has deprived him of the opportunity for rehabilitation and recovery’.[41]
[41] PVDR: T2, p 45.
At the hearing before us, Dr Pulley was very critical of the immigration detention centre as a therapeutic environment. It contained many stress factors that impacted negatively upon the applicant, given his particular mental disorder. Dr Pulley expressed the confident view that upon release the applicant would respond more positively to treatment, with better treatment prospects and improved outcomes.
A critical question for us is whether we can be confident that the applicant will receive care and treatment in the community at least as good, and even better, than that provided in immigration detention. Dr Pulley was unequivocal in this regard.
Family support
Can the applicant’s family adequately support him? The delegate focussed on the level of support that might be expected from the applicant’s family, specifically, his mother and younger brother. He noted that the applicant’s mother had significant health problems in her own right and that the brother was studying or working full time and had limited capacity to help him. There was, in the delegate’s view, a real question mark over the level of support that might be forthcoming from these family members.
We consider that this is too pessimistic a view of the strength and functioning of this family. We had the benefit of witnessing both the applicant’s brother and mother. Each appears to be devoted to the applicant. The applicant’s brother has structured his future career so as to provide real and effective support to the applicant. We cannot but be impressed with the applicant’s brother. He is a credit to his family and indeed the entire humanitarian visa program. The brother was asked during the hearing about the degree of support he could provide his brother. He replied as follows:
Yes, like now all my family knows what’s happening with my brother. Especially last year in 2018 when he was admitted to [a] hospital. We were actually more involved by the doctors about his care. Like they actually educate us more about his mental illness and about his medication. Even though I did Bachelor of Medicine, at that stage I had not studied my mental health units. I didn’t have much knowledge as well. And that gave us more knowledge and opened my eyes and then I researched about it and my family - we understood his mental illness. And then I shared that with my family that what is he really going through and how important his medication is. Compared to back in the days when he committed this crime, I was young, so I was not even involved in anything. It was only my mum. My mum hasn’t had any formal education. She didn’t know - when he arrived from Western Australia, he came in a very, very bad state like, he was very like the medication had big side effect on him. He was - stiff neck, he was incontinent, he would walk from door to door, he was like very bad. And then we thought - and he told us that - back when he was in Western Australia he would call us and complain that these people are giving us - giving me every day injection. So we thought this injection is making him like this. Because we didn’t have the knowledge about what’s happening with him.[42]
[42] Transcript, 11 September 2019, p 66.
It is also significant to know that the brother will not be on his own but has the support of other carer’s and voluntary associations such as Headspace, as well as Dr Pulley, who has taken a special interest in the applicant. In terms of the assessment of risk, we are not inclined to diminish the support emanating from the family, while recognising that the ongoing care and treatment of schizoaffective bipolar disorder is likely to be especially challenging.
Employment
Does the applicant have adequate employment prospects? We note that the delegate was at best ambivalent about the applicant’s employment prospects and found that he did not have promising prospects of employment.[43] He thought, in light of comments by his mother and the psychologist Mr Green, that the applicant had limited work capacity and at best could hope for menial work. We note that that the applicant had the hope of some work as a painter from a relative who owns a painting business. We make our assessment on the basis that for the moment there will be limited work opportunities available to the applicant, but that it is not a future without hope. For example, the speed with which the applicant learnt to speak and write in English is encouraging, as is his early participation in the workforce in Sydney and Perth prior to the onset of his clinical symptoms.
[43] PVDR: T2, p 48.
B. Compliance
In terms of the applicant’s non-compliance with his medication, the sentencing judge considered that the applicant’s prospects for rehabilitation were, among other things, ‘fundamentally and intimately connected with … attending to the proper medication for his bipolar disorder’. This proposition is not disputed in the report of Dr Pulley.
The sentencing judges’ remarks are consistent with the applicant’s evidence that at the time he committed his various offences he was not taking his medication.
Counsel for the respondent argued that the applicant has had “consistent, significant and on-going issues with not taking his medication”. Examples of non-compliance include:
40.1. In July 2017, the applicant was said to have stopped taking his medication for at least 3 months.
40.2. He was then said to have taken his medication ‘sporadically’ between July 2017 and September 2017.
40.3. [In] February 2018, the applicant was found completely naked and had been reportedly been refusing to take his medication for some time.
40.4. [In] March 2018, the applicant is reported as stating that he does not want injections and medications because he does not believe he is unwell.
40.5. [In] March 2018, he was reported as being compliant with his medications, but this was inconsistent with his medication chart which indicated that he had been refusing his morning dose of lithium ...
40.6. [In] June 2018, the applicant was initially refusing to take his injection because he felt better (ultimately he agreed to take it).
Considerable time was spent at the hearing examining medical records and SERCO reports detailing the applicant’s treatment and degrees of compliance. The records submitted to the Tribunal extend until the time of the hearing. The difficulty with retrospective analysis is that it is based on the assumption that the applicant’s psychiatric condition is fixed and unchanging, but the evidence is to the opposite effect. While there are instances in which the applicant has resisted specific medications, we are inclined to view at least some of these instances as outbursts resulting from the complexity of his condition and the inadequacies of his mental health treatment, rather than pointing to a recalcitrant disposition.
Other factors that may foster anti-social behaviour
The Tribunal is aware of the importance placed by the sentencing judge upon the danger of bad influences acting on the applicant. The second cluster offending involved co-offending in the company of much older twenty four year olds who appear to have taken advantage of the applicant. There is nothing to suggest a continuation of that trend.
The applicant has advantages denied to many people suffering from bipolar affective disorder. He has a caring family and a brother with maturity and soon to be qualified as a registered nurse with special skills in relation to mental illness. There is also the singular fact that Dr Pulley has taken an interest in this case and expects to see the applicant as a patient in the future.
The single most potent factor that may lead to adverse results is the failure to comply with a treatment regime worked out in conjunction with his doctors, including, importantly, Dr Pulley and understood by his family members, especially his brother MAH. The evidence suggests that the applicant understands the importance of compliance with his current medical program, which offers him the best chance of resisting the sorts of thought processes that might lead to antisocial behaviour.
CONCLUSION
The Tribunal is satisfied that the applicant has been convicted by final judgment of a particularly serious crime, as defined by legislation.
In determining whether the applicant poses a serious and present risk to the community, a risk that is real, we are required to make a judgment based on all the circumstances of the case. The evaluation must necessarily take account of the applicant’s complex mental health condition.
In light of all the evidence presented to us over a four day hearing, and taking into account the nature of his offending, the judge’s sentencing comments, and the nature of his mental illness, we are firmly of the view that the applicant is not a person whom we consider, on reasonable grounds, is a danger to the Australian community.
The reviewable decision is therefore set aside. The matter is remitted to the Minister for reconsideration with the direction that the applicant is not a danger to the community.
We also comment that the evidence of Dr Pulley suggests his experience in immigration detention has played a causative role in the applicant’s occasional lapses in taking medication and to his general outlook, and that he will benefit from the support available to him in the community, not only from Dr Pulley himself but also from his family. We therefore recommend that the department give early consideration to the grant of a protection visa to the applicant with a view to his release from detention at an early date.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC and Emeritus Professor P A Fairall, Senior Member
..............................[sgd]...............................
Associate
Dated: 21 October 2019
Date(s) of hearing: 8 and 9 August, 11 and 13 September 2019 Solicitors for the Applicant: D'Ambra Murphy Lawyers Solicitors for the Respondent: Australian Government Solicitor
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