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

Mokeni and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 670 (5 April 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0315
Re:Siaosi Jr Mokeni
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:5 April 2023
Place:Sydney

The correct or preferable decision is to set aside the delegate’s decision dated 11 January 2023 not to revoke the mandatory cancellation of the Applicant’s Special Category (subclass 444) visa, and in substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.
..............................[SGD].........................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – protection of the Australian community – whether the applicant committed family violence – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – impediments to removal – reviewable decision set aside.
Legislation
Migration Act 1958 (Cth) s 499, 501
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 99 – 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
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
5 April 2023
BACKGROUND

By way of application dated 18 January 2023, the Applicant seeks review of the decision of a delegate of the Respondent dated 11 January 2023 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act). The decision not to revoke the cancellation was made under subsection 501CA(4) on the basis that the delegate was neither satisfied that the Applicant passed the character test nor that there was another reason why the cancellation decision should be revoked.
I note that the Respondent’s Statement of Facts, Issues and Contentions contain a helpful factual summary of this application, much of which is replicated below.
The Applicant was born in Tonga in June 1999. He is currently 23 years old.
The Applicant migrated from Tonga to New Zealand at the age of 1 and he is a New Zealand citizen.
In December 2009, the Applicant first arrived in Australia at the age of 10. He has departed and returned to Australia on multiple occasions.
In August 2018, the Applicant was granted a Special Category (Subclass 444) (Temporary visa.
In July 2021, the Applicant was convicted of ‘reckless grievous bodily harm-T1’ and sentenced to 4 years’ imprisonment. The Applicant was suffering from a psychotic episode at the time of this offence.
In August 2021, the Applicant was convicted of 4 counts of ‘unlawful assault’, relating to 4 separate incidents involving the Applicant’s former partner.
On 18 August 2021, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Act on the following bases:
(a)He did not pass the character test under paragraphs 501(6)(a) because he had a ‘substantial criminal record’ for the purposes of paragraph 501(7)(c) of the Act (see subparagraph 501(3A)(a)(i); and
(b)The Applicant was serving a full-time sentence of imprisonment in a custodial institution because he committed an offence or offences against Australian Law (paragraph 501(3A)(b).
On 18 August 2021, the Applicant made representations seeking revocation of the cancellation of his visa under s 501CA of the Act.
On 11 January 2023, the delegate of the Minister (the delegate) refused to revoke the cancellation decision on the basis that the delegate was not satisfied that the Applicant passed the character test under section 501 and there was not another reason why the cancellation decision should be revoked pursuant to subsection 501CA(4).
THE ISSUE
It is agreed by the parties that the Applicant does not pass the ‘character test’ as defined by section 501(6) of the Act as he has a substantial criminal record under s 501(7)(c) of the Act. Therefore, the only issue before the Tribunal is whether there is ‘another reason’ why the original decision, being the mandatory cancellation of the Applicant’s visa, should be revoked pursuant to s 501CA(4) of the Act.
THE LAW
The relevant legislation and policy is outlined below.
Section 501CA(4) of the Act states:
(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.
In exercising the power under s 501CA(4) of the Act, the Tribunal must comply with Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
On 23 January 2023 the Minister made Direction 99 pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 3 March 2023.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the five primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)Whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)The strength, nature and duration of ties to Australia (Primary Consideration 3);
(d)The best interests of minor children in Australia (Primary Consideration 4); and
(e)Expectations of the Australian community (Primary Consideration 5).
Section 9 of the Directions provides that the four other considerations which must be taken into account where relevant are:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
ORAL EVIDENCE:
Oral Evidence of the Applicant
The Applicant affirmed his statement of 27 February 2023. He gave evidence that he was born in 1999 in Tonga, and came to Australia at the age of 12. He would be 24 in June this year.
The Applicant said that he went to school in Bendigo, and that he had moved to Sydney 4 years ago ‘to get a fresh start’.
In relation to the incident involving the security guard for which he was charged and convicted of the offence of ‘Reckless Grievous Bodily Harm’ and sentenced to 4 years imprisonment with a non-parole period of 18 months, the Applicant said that at the time ‘he couldn’t function properly’ and that he had ‘blacked out’. He did have some recollection of the events before and after the incident with the security guard, and said that after punching the security guard he had walked away.
He said that when he saw the video footage of the incident in court, he felt ashamed and embarrassed, and that when he thought of the impact of the injuries he had inflicted on the security guard he became very sad. He was aware the security guard had suffered a lot of injuries.
The Applicant said that he had started hearing voices while still living with his family in Victoria, but that the voices had gotten worse after he moved to Sydney, although his evidence was somewhat contradictory as to when exactly the voices started. The Applicant said that he had increased his drug use when he had come to Sydney, and said that the use of drugs had made the voices worse, and led him not to care about himself, or anyone else. The Applicant said that he did not hear voices anymore.
When questioned about the incident the Applicant said that he accepted that the security guard was just doing his job, however the Applicant went on to say that the security guard was ‘not doing his job properly’, because he followed the Applicant which made him angry, and kept telling him to put his shirt on.
The Applicant also gave evidence in relation to the domestic violence offences in Victoria, prior to his move to Sydney. The Applicant confirmed he had entered a guilty plea to a number of charges relating to domestic violence against his former partner. When speaking about his then girlfriend, the Applicant said that ‘we both hurt each other (…) it’s her fault’.
The Applicant was charged but has not yet been convicted of other domestic violence offences, but appeared to have admitted that the offences occurred. The Applicant also said that he had not committed acts of violence in front of a child, despite the fact that his then girlfriend was holding her baby at the time some of the violent acts were committed against her.
Although much of his evidence could be regarded as contradictory. The Applicant stated as follows: ‘I hurt her, she hurt me, (…) I always gave her a chance, (…) she never cared about me’.
The Applicant said that he was not aware that he was subject to a domestic violence order, and was not aware that he faced charges in Victoria. The Applicant admitted that he had previously been charged and had appeared before the Victorian children’s court where he had been placed in a diversion program.
When speaking of his family life, the Applicant said that his father had been very strict with him, but that he had not been violent. However, the Applicant described his relationship with his father as problematic. The Applicant said that he had lost contact with his family once he had moved to Sydney, but he had since regained contact, especially since the family had come to visit him in Sydney. He said he had found living in Sydney challenging, and that he had taken cocaine and cannabis as well as ‘always being drunk’. His employment had been terminated because of non-attendance and his being unreliable. He did not have a partner in Sydney.
When questioned about his rehabilitation, the Applicant gave evidence that he had not used drugs or alcohol since his incarceration. He said that he had taken drug and alcohol programs and that he had seen a psychologist and a psychiatrist. He had been prescribed olanzapine, and a depot injection, which he said he was not currently taking. The Applicant had been receiving his medication by way of injection. He said his last injection was in November 2022 and that the psychiatrist ‘wanted to put me on tablets instead of injections’. He did not want to take tablets, and said that he did not currently have any symptoms of psychosis. He said that whilst in Villawood he had been diagnosed with psychosis rather than being schizophrenic, but he did not accept that diagnosis and that he wanted to go back on his previous medication. The Applicant said, in particular, that he would not take any new medication as he did not know how it would affect him.
The Applicant said that he had strong family support. He said that his brothers ‘had an idea’ of his offending, and that he remained in close contact with them by phone. He acknowledged that he would be able to speak to his brothers by telephone if he were returned to New Zealand. Members of his family had visited him in gaol. If the Applicant were returned to the community, he said that he would go back to his family in Victoria when permitted to do so. If prevented by his parole conditions from returning to Victoria, the Applicant said that he would live with extended family, either in Mascot or Auburn, but also acknowledged that his extended family had indicated that the Applicant would not be able to live with them.
When asked about his rehabilitation in prison, the Applicant stated that he had completed several programs in remand, but did not specify the nature of those programs. He said he had completed a drug and alcohol program, and he said that he would look into a stress management program in the community if it was offered to him. When asked how he would avoid drugs and alcohol if he was released into the community, he stated that he would focus on his medication, work, family and staying calm. He did acknowledge that counselling would help him in the future.
The Applicant stated that he had no family remaining in New Zealand, as they had either passed away or moved to Australia. He did not have any friends with whom he was in contact in New Zealand, and the Applicant also said his family would be unable to provide financial support for him in New Zealand.
Oral Evidence of Eniselena Mokeni
The witness affirmed her statement of 24 February 2023. She said that the Applicant was born in Tonga in 1999, and that the family moved to New Zealand when he was 1 year old. The family subsequently moved to Australia in March 2010, and settled in Bendigo, where they still live today.
The Applicant attended primary school and high school in Bendigo and left in year 10. He finished school because he wanted to work in Deniliquin with a friend for a year. He came back to Bendigo after about a year and then went to work at the same factory as his mother.
The Applicant’s mother said that he borrowed money to buy a car, and lived with his family until he moved to Sydney in 2020. The Applicant’s mother said that she had noticed changes in the Applicant prior to his move to Sydney. She knew that he was having problems with his girlfriend and thought that he was also suffered stress from work. She had noticed changes in his personality.
The Applicant’s mother was surprised when he decided to move to Sydney but was supportive of the move. The Applicant’s mother was unaware of the Applicant’s family violence offences and only became aware of them when the police came to the house looking for the Applicant.
She said that both she and the Applicant’s father then thought that that may have been a reason for the Applicant wishing to move to Sydney. She said that once they were aware of these charges, she and the Applicant’s father spoke to the Applicant and that he accepted responsibility and showed remorse. She thought the offences were due to the Applicant’s stress and anxiety and said she knew the Applicant was drinking a lot at the time, but did not know that he was also taking drugs.
The Applicant’s mother gave evidence that she and the Applicant’s father came to Sydney to visit the Applicant on the day of the incident with the security guard. She said that on the way to Sydney the Applicant was phoning his parents very frequently and was not making sense/telling his parents to go back Bendigo as ‘people were coming to shoot him’. The Applicant’s aunty had told his mother that the Applicant was saying similar things to her. This was the first time the Applicant’s mother had experienced this kind of behaviour from the Applicant.
She said that the night before the Applicant was charged in relation to his assault on the security guard, he had said nothing to the family about the incident when he arrived home, but she had noticed that he was shaking. She thought that he had been drinking. She was very shocked when the police came to the house. She said the Applicant was taken to the Police station and subsequently taken to the hospital where the Applicant was given medication to calm him and to make him sleep.
The Applicant’s mother believed that he was currently taking his medications. She said that if the Applicant were to be released into the community and able to live with his family, she would take him to their GP and get a referral so he would be able to access professional help in relation to his medical health. The Applicant would live with his family if he were allowed to remain in Australia.
If the Applicant were to be returned to New Zealand, his family would help him in any way they could. She said however, that the Applicant would not cope in New Zealand and that there was no one there to support him.
The Applicant’s mother said that she had been adversely affected by the Applicant being in prison, and that it’s ‘breaking my heart’.
The Applicant’s mother said that the Applicant maintained a close relationship with his brothers. She said that the reason the Applicant may not have been able to speak to his brother J from time to time was because J was at school or at the gym. She said there had been no deterioration in the Applicant’s relationships with his brothers, who still love him and want him to come home.
The Applicant’s mother gave evidence that all of the family were New Zealand citizens, and that they had travelled back to New Zealand one or two times since arriving in Australia, in order to visit family. She did not know if the Applicant maintained contact with any childhood friends from New Zealand.
She said that the Applicant’s father was very strict with him, and that as the eldest son, he always wanted the best for him.

She said that if the Applicant were to remain in Sydney that the parole officer would assist the Applicant find accommodation and a job, and that the family would provide financial support.
Evidence of Dr Chew
Dr Chew affirmed his report dated 14 February 2023 and outlined his qualifications and experience. Dr Chew said that he had diagnosed the Applicant as having a significant primary psychotic illness, which he believed to be schizophrenia. In his view the Applicant required long term, ongoing treatment.
In Dr Chew’s view, the Applicant faced significant challenges as a result of his illness. He said that in light of the Applicant’s past conduct, and the significant risk such conduct posed to others, he would err on the side of ongoing treatment and the necessity for a long-term treatment plan.
It was essential that the Applicant remained substance free as the abuse of alcohol or illicit drugs would induce psychosis.
The ongoing management of schizophrenia required the Applicant to take antipsychotic medication, using injectables, on a long-term basis.
Dr Chew noted that the Applicant had previously been on long term medication prior to his interaction with Dr Lienert, who had made a diagnosis that the Applicant’s psychosis was the result of drug abuse, that the condition was no longer present, and that the Applicant did not need to remain on long term medication.
Dr Lienert’s diagnosis was at odds with Dr Chew’s diagnosis, and the diagnoses of Dr Elliot and Dr Dayalan. When Dr Chew was questioned about Dr Elliot’s report which spoke to schizophrenia being characterised as ‘episodic’, Dr Chew said this was one of the reasons that he had diagnosed the Applicant with schizophrenia. He said following the psychotic episode the Applicant had experienced at the time of the grievous bodily harm offence, his symptoms persisted for a long time, while being under anti-psychotic treatment, and in the absence of illicit substances. He said this was in contrast to drug induced psychosis, which would be expected to resolve quite quickly following the cessation of taking illicit substances.
When asked whether the Applicant was now willing to engage with treatment, Dr Chew said that the Applicant was ambivalent, due to recently being told by another psychiatrist that he did not need medication, but would consider it. The Applicant was, in Dr Chew’s view, very committed to abstaining from substance abuse.
If the Applicant were to be substance free, and remain on antipsychotic medication, Dr Chew was of the opinion that the risk of harm to the community would be significantly reduced.
Dr Chew gave evidence that he had trained in New Zealand and that if the Applicant was removed to New Zealand, he would have access to the mental health system there, which Dr Chew described as being ‘equivalent to Australia’s’. However, Dr Chew noted that the Applicant had very few links, and no supports in New Zealand and that this would be detrimental to his mental health. In fact, Dr Chew felt the Applicant would be unlikely to engage with mental health services in New Zealand. This was contrary to the position in Australia where there were protective factors such as family support, and the opportunity to have a more positive lifestyle.
When asked why the Applicant could currently be seen to be symptom free, Dr Chew gave evidence that antipsychotic medication had a long half-life. In his view, the Applicant would still be experiencing a benefit from the antipsychotic medication that he had taken, and that this would last for some 234 days from his last dose, until the medication left his system entirely. The fact that the Applicant had been free of symptoms for a long period could lead to a belief that the underlying illness had gone.
In the longer term, Dr Chew was of the view that it was almost inevitable that the Applicant would have a psychotic relapse if he were not to take antipsychotic medication. What he could not predict was when such an episode might occur, but it would be ‘a high-risk time’.
Any relapse into substance abuse would greatly increase the risk of another psychotic episode.
Dr Chew also gave evidence about the possibility of long-term treatment orders, and the capacity to closely monitor people who were a risk to the community and ensure that they complied with their medication regime.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY:
In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 99.
There are two aspects to this consideration – the nature and seriousness of the conduct of the non-citizen, and the risk to the Australian community should the non-citizen re-offend.
Nature and seriousness of the offending
The Applicant is 23 years old and has been in Australia for approximately 13 years.
The Applicant’s offences must be regarded as very serious. In particular, I note that they fall within the provisions of clause 8.1.1(1)(a) of Direction 99.
The Applicant was convicted on 17 August 2021, in the state of Victoria, of ‘unlawful assault’, against his former partner. The offences involved both physical and verbal abuse and intimidation. On that occasion the Applicant was given a $2000 fine.
The Applicant has further charges pending, in relation to allegations of family violence against the same woman. Relevantly, he is accused of assaulting her while she was carrying a young baby. It appears that these charges have not yet been pursued, because the Applicant had moved to New South Wales prior to the police coming to his parent’s home, where he lived at the time, to interview him in relation to the alleged offences. The Applicant’s mother gave evidence that the Applicant may have, in fact, been motivated to move to Sydney to avoid being charged with these offences.
The Applicant’s offence of ‘reckless grievous bodily harm’, for which he received a sentence of 4 years imprisonment, with a non-parole period of 18 months involved very serious physical violence against a security guard at a shopping centre. The Applicant acknowledged that the security guard was just doing his job, although the Applicant said that in his view he was ‘not doing it properly’. The security guard sustained serious injuries, after being repeatedly punched and thrown to the floor.
There was some discussion at the hearing as to whether the Applicant could have entered a not guilty plea on the basis of mental illness at the time. However, I note that this did not happen and it is not the role of the Tribunal to go behind the conviction. It was also put to the Tribunal that the Applicant’s conduct might properly be regarded as less serious because of his mental illness and in particular, the fact that at the time of the offence involving a security guard, the Applicant was having a psychotic episode. I note that this was taken into account by the sentencing judge, who said:
In setting a sentence for this very sad case, the Court must take into account the serious nature of the offending and the sad and difficult circumstances of the offender. The head sentence must reflect, to some extent, the objective seriousness of the offence, notwithstanding a reduction in the offender’s moral culpability. His moral culpability will be reflected in a significant finding of special circumstances on his behalf.
In my opinion, the reason for the Applicant’s conduct and whether or not it lessens the seriousness of the conduct or its outcome is a matter for the Criminal Court to determine as part of its sentencing determination. It is not for the Tribunal to ‘second guess’ the sentencing judge.
It is not necessary to elaborate all of the details of the Applicant’s convictions, but given the nature of the conduct for which he was convicted it must be regarded as extremely serious.
Risk to the Australian community should the Applicant reoffend
In my view the evidence demonstrated quite clearly that the Applicant is at moderate to high risk of re-offending if he does not receive appropriate ongoing treatment. In this regard, I do not accept the diagnosis of Dr Lienart – that the illness has passed and that the Applicant does not need medication.
Dr Lienart’s view is completely at odds with the views of Dr Chew, Dr Elliott and Dr Dayalan.
Dr Dayalan, who was the psychiatrist instructed to psychiatrically assess the Applicant’s fitness to stand trial, and the availability of the defence of mental illness stated as follows:
Mr Mokeni has a history of psychotic illness characterised by delusional beliefs, auditory hallucinations, thought disorder and bizarre behaviour. I suspect that the problems at work and relationships were attributable to prodromal phase of his psychotic illness. Urine drug screen done at time of admission to Prince of Wales Hospital had noted a negative result. He admitted that he continued to experience auditory hallucinations despite being abstinent from substances. He was noted to present with probably negative symptoms associated with chronic psychotic illness such as blunted affect and reduced motivation.
Based on the information available at the time of my assessment, Mr Mokeni’s history and presentation are consistent with diagnosis of schizophreniform psychosis as per the criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5. This diagnosis may get revised to schizophrenia if his symptoms or functioning impairment last more than 6 months from the time of onset.
Dr Elliott, who was instructed by the New South Wales State Parole Authority to assess the Applicant prior to his release from prison, in his psychiatric report dated 25 July 2022, which was before the Tribunal, stated as follows:
Mr Mokeni requires ongoing psychiatric care and treatment. He remains on a depot antipsychotic. On release from custody, it will be necessary for him to be referred to a Community Mental Health Team to supervise his treatment. Mr Mokeni did cease his oral olanzapine of his own volition. Whilst this is of some concern, I note he has remained compliant with his long acting depot antipsychotic and again that he spoke favourably of his treatment during the assessment. It is also likely that his treating team would have rationalised to abilify depot alone. I do not consider that there is a current indication for him to be placed on a community treatment order, but his compliance with treatment should be a condition of his release to parole. It is important for his family to be included in discussions about his diagnosis and need for ongoing care.
It is essential that Mr Mokeni remain entirely abstinent from illicit substance use on release from custody. He appeared to recognise this, but it should nonetheless be a condition of his release to parole. He may also benefit from completing a drug and alcohol course and he appeared eager to engage in such care.
In his evidence, Dr Chew said that the Applicant was a high risk of re-offending if he did not have ongoing treatment for schizophrenia, and that without treatment a psychotic episode was inevitable, which would certainly be a high risk for the community.
The Applicant’s representative in final submissions submitted that the Applicant’s depression and anxiety, for which he had sought medical treatment prior to any violent episode was probably symptoms of the onset of schizophrenia.
In my view, it is quite apparent from the reports of Dr Dayalan, Dr Elliot, and Dr Chew that the Applicant’s schizophrenia and psychotic episode was not a one-off event triggered by excessive drug use, but rather the symptoms had been present for some time. This is supported by the evidence of the Applicant’s Mother who noticed changes in his behaviour.
It is clear, in my view, that the Applicant, if properly treated, poses a low risk to the community, but if he does not continue to receive long term ongoing treatment he is at a moderate to high risk of reoffending, with potentially grave consequences.
I note, in particular, Dr Chew’s evidence that without treatment, another psychotic episode was inevitable, although it was impossible to tell just when it might occur.
It was raised with the Tribunal that if the Applicant is to be released, he will be on parole, and it is likely that ongoing mental health assessment and treatment will be part of his parole.
Whilst this would be a protective factor, I note that the Applicant would have limited family support in New South Wales, which was seen as a protective factor in a number of psychiatric reports. It is however, very important that the Applicant continue with appropriate anti-psychotic medication.
I accept that the Applicant has been drug and alcohol free for some time, and that he has expressed a determination not to use drugs or alcohol in the future. Again, it is quite clear from the various medical reports that if the Applicant were to engage in substance abuse his risk of a psychotic episode with consequent danger to the community would be high.
Overall, particularly in light of the fact that the Applicant is currently not taking any medication to treat his psychiatric illness, and appears at best ambivalent about ongoing treatment, it is impossible to conclude other than he is currently a moderate to high risk of reoffending, although the risk level would fall substantially if he were to follow an appropriate treatment regime.
It is unfortunate that the Applicant, perhaps due to stress or some cognitive impairment, did not make a good witness. For much of the time he was clearly upset, and many of his answers were either contradictory or somewhat ambivalent, including his answer as to whether or not he would take antipsychotic medication in the future. He was certainly reluctant to take tablets or medication that made him feel bad. While I respect the diagnosis of Dr Leinart, it must be said that it has not helped the Applicant, given the weight of evidence that a strong commitment to taking appropriate medication would lessen the risk he poses to the community.
As a result, this first consideration weighs heavily against revocation of the delegate’s decision.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE
The Applicant was convicted of ‘unlawful assault’ against his former partner. The offences for which he was convicted involve both physical and verbal abuse. The Applicant received a fine of $2,000.
I note the Applicant may also be charged with further offences against his former partner. The Applicant gave evidence about this incident during which he appears to have admitted to physical violence against his former partner who was holding a small baby at the time. I note he later denied committing any act of violence in the presence of the child.
In relation to the offences for which he was convicted, the Applicant said it was the victim’s fault, and in relation to the later conduct for which he has not been charged, the Applicant said that he was always ‘fighting for her’ but that she ‘gave up on’ the Applicant, and that ‘she never cared about me’.
There is no evidence that the Applicant’s behaviour towards his former partner was due to mental illness, although the symptoms of schizophrenia, may, at least on Dr Dayalan’s evidence have been starting to manifest. It is to the Applicant’s credit that he entered a guilty plea and despite his somewhat contradictory evidence, appeared to take responsibility for his actions.
The Applicant’s family violence must be regarded as serious and weighs heavily against revocation.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA:
The Applicant arrived in Australia at the age of 10, having lived in New Zealand for some time prior to coming to Australia. He gave evidence that he had received some of his primary school education in New Zealand.
The Applicant attended high school in Australia, and left in year 11 because he wanted to work. The Applicant did express regret that he had not completed high school in Australia.
On the evidence the Applicant visited New Zealand on at least one occasion after he had arrived in Australia, to see family, but those family members are either now deceased or living in Australia.
The Applicant does not appear to have any friends, or former schoolmates in New Zealand with whom he has maintained contact. All of the Applicant’s immediate family live in Australia and have been settled in Bendigo.
His mother gave evidence that he had worked in Bendigo, and she also made reference to his involvement with football during his time in Australia.
When questioned about his links with New Zealand, the Applicant gave evidence, which I accept, that he had no close contacts in New Zealand, and that he would have nowhere to live if he were to return to that country.
In short, there is no evidence that the Applicant has any ties to any country other than Australia. He has very strong ties to his family, and there is no doubt that his immediate family are highly supportive of him.
In light of the evidence above, I find this consideration weighs very heavily in favour of revocation of the delegates decision.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA:
The Applicant does not have any biological children in Australia. He does, however, have three younger brothers J, aged 16, F, aged 14, M, aged 2.
I accept the evidence of the Applicant and his mother that the Applicant has very close ties with his brothers, particularly the two older boys.
I note that J gave a statement in support of his brother to the Tribunal, and Counsel for the Applicant said that he would be prepared to give further evidence to the Tribunal, which I declined to hear in view of his age. I accept, however, the evidence of the Applicant’s mother, who I found to be a reliable and honest witness, that the Applicant’s brothers are close to him and want him to come home.
I give this consideration moderate weight in favour of revocation. In doing so, I note that the Applicant has been incarcerated for all of M’s life, and that it would be possible for the Applicant to maintain links with his brothers from New Zealand via telephone and social media.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Direction 99 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs FCAFC185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are set out in direction at paragraph 8.5.
In determining the weight to be given to this consideration, I take into account that the Applicant has lived in Australia for the majority of his life, and certainly during his formative years. His mental illness has developed during the period he has lived in Australia.
His crimes are serious and cannot be downplayed, however it must be acknowledged that mental illness has played a large part, at least, in the offences against the security guard, and it is to the Applicant’s credit that he had sought assistance to deal with his mental health issues prior to this offending behaviour. Generally, in my view, the community would expect someone who has sought assistance with mental health issues to be given appropriate long term mental health treatment, although this does not appear to have been the fault of either the Applicant or the treating doctor at the time, given the complexity and specialist nature of psychiatric diagnosis.
Although Dr Dayalan, in his report, expressed the view that the Applicant could have plead not guilty to the offences on the basis of mental illness, the Applicant chose not to do so, after viewing the footage of the incident, and accepting responsibility for both his family violence offending and his criminal offending, and the consequences of that behaviour. It is to his credit that he chose to accept responsibility.

In all of the circumstances I give this consideration moderate weight against revocation.
OTHER CONSIDERATION – EXTEND OF IMPEDIMENTS IF REMOVED
The medical evidence from Dr Chew and Dr Elliot was clear. The Applicant’s mental health is likely to be severely adversely affected if he were to be removed to New Zealand. Dr Chew, in his evidence said that although the mental health services in New Zealand were equivalent to Australia, the Applicant would be unlikely to access them.
In Australia, it is much more likely, particularly given that the Applicant will be on parole, that he will receive ongoing mental health treatment. Further, the Applicant’s mother said that she would ensure that when the Applicant returned home to his family, he would visit the family GP and get a referral for ongoing mental health assessment and treatment.
Family was expressed by both Dr Elliot and Dr Chew to be an important protective factor in ensuring that the Applicant engaged with mental health services and did not relapse into alcohol or drug abuse.
In considering the evidence overall I find that the Applicant’s chances of any sort of rehabilitation, ongoing treatment or basic needs for housing and work would be almost non-existent, at least in the short term, if he were to be returned to New Zealand.
Although his mother said they would do everything they could to help him, financially or otherwise if he were to be returned to New Zealand, their help would clearly be very limited, and the Applicant would be alone in a society where although language is common, everything else is likely to be unfamiliar to him.
It is difficult to see one factor that would weigh in favour of the Applicant returning to New Zealand. Even if the view were taken, that it would allow Australia to ‘wash its hands of the problem’, there would be considerable residual damage to the Applicant’s family, who are permanently settled in Australia, as reflected in the evidence of the Applicant’s mother.
Overall, I give this consideration very heavy weight in favour of revocation.
CONCLUSION:
In his concluding remarks, counsel for the Applicant submitted that the Applicant is a vulnerable young man, struggling to come to terms with what’s happening to him, that he was committed to addressing his mental illness, and that, but for the confusion arising from the diagnosis and recommendations of Dr Leinart, the Applicant would still be complying with his medication regime. In large part I agree with those remarks.
The crimes for which the Applicant has been convicted are very serious, and there is a level of risk to the community if he remains in Australia. Those risks can be mitigated if the recommendations of Drs Chew, Elliott and Dayalan are followed. Deporting the Applicant to New Zealand leaves him with a greatly reduced chance of regaining a reasonable quality of life and will undoubtedly cause a great deal of suffering for his family.
If the Applicant remains in Australia, it is more likely than not, that he will have an appropriate treatment regime, either through parole conditions, or the intervention of his family. It is, in my view, important that the Applicant’s legal aid representatives make it clear to the New South Wales authorities the important of the Applicant receiving proper mental health treatment.
On balance, I accept that whilst the Applicant may be ‘ambivalent’ about taking his medication, he has not refused to do so. I accept also Dr Chews evidence and that of the Applicant that he is committed to refrain from substance abuse. Having weighed all of the considerations under Direction 99, I am of the view that the correct and preferable decision is that the delegates decision is revoked.
The Applicant needs to be very well aware of the potentially serious consequences for him if he does not abstain from drugs and alcohol and does not maintain a proper mental health treatment regime. In the end, he must take some personal responsibility, and not only rely on the intervention of others. The Tribunal does not have the power to impose a requirement that the Applicant receives appropriate mental health treatment, but if the Tribunal did have that power, I would make such an order.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

.............................[SGD]......................................
Associate
Dated: 5 April 2023

Date(s) of hearing: 29 & 30 March 2023

Counsel for the Applicant: Mr G Rohan

Solicitors for the Applicant: Ms K Anandasivam

Counsel for the Respondent: Ms N Maddocks

Solicitors for the Respondent: Ms C Lewis

[2023] AATA 670

5 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Proportionality

Remedies

Date(s) of hearing:	29 & 30 March 2023
Counsel for the Applicant:	Mr G Rohan
Solicitors for the Applicant:	Ms K Anandasivam
Counsel for the Respondent:	Ms N Maddocks
Solicitors for the Respondent:	Ms C Lewis