MLLL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 4708

MLLL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4708 (20 December 2022)

Division:GENERAL DIVISION

File Number(s):      2022/8444

Re:MLLL

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President B W Rayment OAM KC

Date:20 December 2022

Date of written reasons:        24 January 2023

Place:Sydney

The Tribunal decides that the decision to refuse to grant the Applicant a Bridging E (Class WE) visa is set aside and remitted to the Respondent with the direction that the visa is not to be refused under s 501 of the Migration Act 1958 (Cth).

.................................[SGD].......................................

Deputy President B W Rayment OAM KC

Catchwords

MIGRATION – visa refusal – substantial criminal record – stalk/intimidation convictions – mental health conditions – use of prohibited drugs – no violent offending – humanitarian concerns – decision under review set aside and remitted

Legislation

Migration Act 1958 (Cth)

Cases

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628

Secondary Materials

Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 90 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

24 January 2023

1. The applicant has sought review of a delegate’s decision of 21 September 2022 to refuse to grant to him a Bridging Visa E under s 501(1) of the Migration Act 1958 (the Act).

2. On 20 December 2022, orders were made by the Tribunal that the decision to refuse to grant to the applicant a Bridging E (Class WE) visa be set aside and that the matter be remitted to the respondent with a direction that the visa is not to be refused under s 501 of the Act My reasons for making those orders follow.

3. The applicant has twice been before the Migration and Refugee Division (MRD) of the Tribunal before the present review came on for hearing. He has a pending application for a protection visa. For the purposes of that visa application, it was decided by the MRD on 5 November 2018 that the applicant is owed protection obligations under s 36(2)(a) of the Act. That determination bears on the present review as well. It means in practice that the applicant will not be sent back to Lebanon, whatever the outcome of the present application for review may be, because the applicant will not seek voluntary return to his country of origin, and because of s 197C of the Act. In practice, he will either be released from detention, or will remain there for a prolonged or indefinite period.

4. Detention has been hard on the applicant. He unfortunately suffers from a bipolar condition and that exposes him to danger from other detainees because his conduct is not seen as normal. He has developed mechanisms to minimise that danger. He ingratiates himself with other detainees by giving them his own food and in effect acting as their servant.

5. On 26 July 2021, the MRD decided that the applicant met the criteria for the grant of a Subclass 050 Bridging (General) Visa under cl 050.223 of Schedule 2 to the Regulations made under the Act.

6. The applicant’s application for a protection visa is still pending. It will be decided in due course.

7. The applicant, if he is released into the community as a result of orders made on 20 December 2022, will be able to apply for the right to work by applying for a fresh Bridging Visa E under cl 050.212(8) to dispense with condition 8101 under the visa which was most recently in force. Such an application could find favour with the Minister on compassionate grounds, and because for the applicant to be able to work will constitute a protective factor against any recidivism. He wishes to work, as he has done in the past. It is certain criminal convictions which have led to him being refused the Bridging Visa E by a delegate of the respondent. Working will also provide the applicant with income which will enable him to obtain necessary treatment, as discussed in [9] and [10] below. The applicant may be unable to pay security for the grant of a new visa, and as the applicant’s representatives point out, application may be made to the respondent to dispense with that requirement as a condition of the new visa.

8. The criminal convictions led to him spending four months in prison, until he was granted parole at the expiration of his non-parole period.

9. He has a current and past bipolar diagnosis, which, together with cannabis use, or non-compliance with prescribed medication, led to his criminal offending. The offending basically involved his having on several occasions threatened violence to others, but in each case there was no actual violence. He is a person who presented in the Tribunal as a mild man, slight of stature and relatively short, whose English is fluent and slightly accented. Violence was on one occasion used upon him by an ISIS supporter after he expressed adverse views about ISIS. The applicant did not respond in kind and suffered injuries.

10. A psychologist who interviewed the applicant in December 2022 reported that he regularly takes Olanzapine which he requires to treat his bipolar condition, and if released will clearly require regular intensive psychotherapy and cognitive behaviour therapy. He noted that at the time of the offending he was non-compliant with the Olanzapine, but that he is now stable in detention. In March 2023 he will, unless released, have spent two years in detention. The expert was informed that he had been abstinent from cannabis use for two years which he described as amounting to his being in remission. Asked to assume use of cannabis in detention one year ago, he said that he would not describe the drug use as being in full remission until two years had elapsed from his last use.

11. He described the bipolar disorder as a lifelong condition, for which he will require ongoing psychiatric supervision with a view to his compliance with medication being monitored. He assessed the chance of recidivism to be moderate to low, and made it clear that the risk of recidivism to which he referred related to intimidation, not to violence.

12. The applicant says in his statement that he would consult his general practitioner to arrange an Olanzapine treatment plan and to engage with a mental health professional. He has consistently used Olanzapine in detention and found it to be beneficial.

13. The applicant said that he intended to remain abstinent from cannabis if released. On the occasion when in late 2021 he last took cannabis in detention, he was admitted to hospital because his condition then deteriorated. The applicant’s convictions and offending resulted from his bipolar condition, and not taking his medication or taking cannabis, as the expert psychologist stated in his report.

14. I regard it as quite important in the assessment of the mandatory consideration stipulated by Direction 90 of protection of the Australian community that his offending was non-violent. He threatened others when non-compliant with his medication or also taking cannabis, but did not carry out his threats. He said that he had never been violent to others and I accept that evidence, despite a document (whose author was not called) indicating that an apprehended violence order was put in place against him by police purportedly because of his having head-butted another person. The order was not continued by a magistrate before whom the applicant came one week later, so it was in force for one week only. The evidence of the applicant that he has never hurt another person is consistent with the remarks on sentence of all judicial officers who dealt with the applicant.

15. If the applicant should be guilty of any recidivism, it will involve a threat of violence but there is no reason to expect actual violence. That view is consistent with the non-parole period of four months fixed in the District Court. Those who were threatened by the applicant were fellow tenants with him in rented accommodation, and in one case, an elderly landlady. The applicant said that he was recently offered free accommodation by himself alone, and that the offer came from the landlady’s son. Threats made to the mother of that person were one of the offences of which he was convicted.

16. For three years before the applicant came to Australia he worked for Emirates Airlines as a flight attendant, without incident. Employment is one of the protective factors taken into account by the expert psychologist who gave evidence before the Tribunal.

17. The applicant called the evidence of a character witness who has known the applicant for twenty years, that is, since they were both young in Lebanon. He said that he would allow the applicant to live with him and would support him financially as he knows him to want to build a life for himself. The respondent did not require that witness for cross-examination and I am prepared to accept his evidence. If the Minister grants a fresh Bridging Visa E to the applicant so as to permit him to work, then the financial support offered by the character witness will not be required.

18. The other mandatory considerations mentioned in Direction 90 may now be discussed. The applicant has no children, no wife, and has not been guilty of domestic violence. As with most cases of persons with convictions the (deemed) expectations of the Australian community do not favour the applicant. Non-refoulement obligations have already been determined by the MRD. Ties to the community exist, such as with the applicant’s friend who has known him for twenty years or more.

19. Direction 90 does not exhaust the relevant considerations. This case, like many others, raises mental health considerations prominently. In turn, since the applicant does not pose any significant physical danger to others, the case squarely raises the humanitarian concerns highlighted in the reasons for judgment of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]. His Honour there said:

    By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

20. Those opinions reflect the principles of good government which since its inception have influenced decision-making in discretionary matters in the Tribunal. They permit human sympathy to be extended to the applicant on account of his bipolar condition, from which he suffers without any fault, and which will require continuing treatment from medical professionals both for his own protection and for the protection of others.

21. For those reasons, in my opinion the correct or preferable decision is to set aside the reviewable decision and to remit the matter to the respondent with the direction that the visa is not be cancelled under s 501 of the Migration Act 1958.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

......................................[SGD].................................

Associate

Dated: 24 January 2023

Date(s) of hearing:	19 & 20 December 2022
Date final submissions received:	23 January 2023
Counsel for the Applicant:	Mr L Karp
Solicitors for the Applicant:	Mr A Sawan, Refugee Advice & Casework Service
Solicitors for the Respondent:	Ms E Tattersall, Sparke Helmore Lawyers