Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 114 (24 January 2022)
Division:GENERAL DIVISION
File Number: 2021/8259
Re:Hoang Phuc Nguyen
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date:24 January 2022
Date of Written Reasons: 31 January 2022
Place:Brisbane

On 24 January 2022, the Tribunal set aside the decision made by the delegate of the Respondent on 29 October 2021 and exercised the discretion contained in section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa.
...........................[SGD].............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Five Year Resident Return visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – severe mental illness – decision under review set aside and via cancellation revoked
LEGISLATION
Mental Health Act 2016 (Qld)
Migration Act 1958 (Cth)
Public Health Act 2005 (Qld)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member Rebecca Bellamy
31 January 2022
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 46 year old citizen of Vietnam. In July 1991, when he was 16 years old, he moved to Australia. The most recent visa granted to him was a Class BB Subclass 155 – Five Year Resident Return visa (“visa”).[1]
[1] Exhibit G1, G3 pages 10 to 16.
On 24 June 2021, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 20 July 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 29 October 2021, the Respondent decided not to revoke the cancellation.[4]
[2]     Exhibit G1, G36, pages 343 to 350.
[3]     Exhibit G1, G16 to G18.
[4]     Exhibit G1, G4 page 19.
The Applicant subsequently lodged an application for review in this Tribunal on 5 November 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit G1, G2, page 3 to 9.
The hearing of this application took place on 10 and 11 January 2022 via video conference and telephone. The Applicant, his mother, his sister, his two brothers, his ex-partner, his daughter, a family friend, and a representative from Narcotics Anonymous (“NA”) gave evidence. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. Significantly, the Applicant’s ex-partner suffers from severe mental health problems and his daughter is only 11 years old, making them both vulnerable witnesses. Both were determined to give evidence. With the party’s co-operation the questioning of these witnesses was kept to a minimum. The Tribunal acknowledges the Respondent’s concern for the wellbeing of these witnesses and appreciates the very reasonable approach taken in relation to them.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[6]
[6] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 7 May 2021 the Applicant was sentenced to two concurrent terms of imprisonment with an effective head sentence of 12 months. The parole release date was fixed on 25 June 2021 taking into account 70 days of time served in pre-sentence custody. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[7] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[7] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[8]
[8] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.
Those principles may be briefly stated as follows:
(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 measurable 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. However, Australia may 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.
(5)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 8.4(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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note that paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant came to Australia in mid-1991 when he was 16 years old. He left school to find work to help support his family. He held employment from 1991 to 1993 as a kitchen hand, and from 1997 to 1998 as a labourer. He was in a relationship that produced two children, in 1995 and 1997 respectively. He has no contact with these children.
The Applicant has a lengthy criminal history, much of which is associated with drug abuse and schizophrenia.
Between 1993 and 1997, the Applicant was dealt with for the following offences:
·possession of a prohibited article - sentenced on 7 January 1993 to probation for 12 months;
·assault (x2) and custody of an offensive implement (x2) - sentenced on 6 August 1993 to 100 hrs Community service (x2);
·offensive language - sentenced on 9 January 1995 to a fine;
·possession of a prohibited drug (heroin) - sentenced on 6 March 1995 to a 12 months good behaviour bond;
·mid-range drink driving - fined $600 on 24 July 1996 and disqualified from driving for four months; and
·“special” drink driving - fined $350 on 27 November 1997 and disqualified from driving for four months.
In June 1998 the Applicant was dealt with for being “armed with intent to commit indictable offence (assault)”. He was sentenced to a recognisance (good behaviour bond) for 12 months. In relation to this offence, the Applicant claimed that he was at a local pub and he was abused by a group of patrons who used racial discrimination slurs and urinated on his bike helmet. He reacted by grabbing a knife and chasing them out of the pub.[9]
[9] Exhibit A1, page 2, paragraph [15]; Transcript, page 78, lines 34 to 40.
On 4 January 1999 the Applicant committed “possess/sale/supply prohibited substance” (heroin). The police Statement of Facts indicates that the police intercepted the Applicant in a car he was driving. He had four small balloons in his mouth, and he was in possession of $925 in cash. The police suspected that the balloons contained heroin and the cash was the proceeds of the sale of drugs. He told the police that the drugs were for himself. The person who was with him in the car told the police that she had met the Applicant two weeks prior for the purpose of buying heroin from him and she had bought heroin from him on three occasions.[10] The Applicant was sentenced on 17 March 1999 to imprisonment for nine months, with release after six months on a two year recognisance.
[10] Exhibit R2, page 125.
It was claimed by the Applicant that he was in a relationship with someone else who was a drug addict, that she was charged with possession of drugs and she told the police that the Applicant shared them with her.[11] This is not consistent with the police facts and the severity of the sentence that was imposed, and it does not explain the $925 in cash. I find that the Applicant was dealing heroin. Upon release from prison the Applicant moved to Queensland to live with his parents and siblings.[12]
[11] Exhibit A1, page 3, paragraph [16]; Exhibit G1, G16 page 97.
[12] Exhibit A1, page 3 paragraph [17].
In May 2001 the Applicant was dealt with for having custody of a knife (flick knife) in a public place and was fined.
In November 2002 the Applicant was dealt with for “receiving property obtained in Queensland” between 24 March and 4 April 2002. Unknown persons stole a large tool box that was strapped to the back of a utility by cutting the straps. Some of the tools were later found at the Applicant’s address.[13] The Applicant was sentenced to probation for one year and 80 hours of community service, then re-sentenced on 30 April 2003 to probation for six months and a $1,050 fine.
[13] Exhibit R2, page 122.
In March 2003, the Applicant was dealt with for possession of property that may reasonably be suspected of being tainted property (on 31 March 2002), possession of a knife in a public place (on 4 September 2002) and possession of weapons (on 1 December 2002).
On 29 June 2003, according to police records, the Applicant and another person attended an office address. The Applicant was holding a 1.5 metre long steel instrument with a pointed end. He banged on the door and yelled out “Open the door”. He continued banging until the glass shattered. He yelled “I'm going to kill you” to a person who attended at the door.[14] On 14 November 2003 the Applicant was fined $450 for “without lawful excuse found in dwelling house or yard”, wilful destruction of property, and possession of weapons. In the hearing the Applicant claimed that he had been holding a walking stick that was missing the stopper on the end.[15] He said a person came to the door with a tenpin bowling ball and threw it at him, so he ran out. The person kept throwing the ball at him so he picked it up and threw it back which broke the window or the door.[16] He might have threatened to kill the person, but he cannot remember. He panicked when he saw the glass broken and he ran.[17] I am satisfied that the Applicant made the alleged threats and smashed the glass. I do not consider that, if a bowling ball had been thrown at him in those circumstances, it gave him any excuse for retaliating.
[14]    Exhibit R2, S23 pages 107 and 108.
[15]    Transcript, page 41, lines 43 to 48.
[16]    Transcript, page 42, line 16 to 20.
[17]    Transcript, page 43, lines 1 to 5.
According to police records, on 25 March 2004, a former partner of the Applicant told the police that he had gone crazy and pushed her and her friend over while threatening to kill her with a sword. She said he continued to make threats to kill her and her friend by slicing them with a sword and he threatened to burn her house down. The police found the Applicant heavily intoxicated. He refused to provide a statement about what happened.[18] A Domestic Violence Order (“DVO”) was issued on 30 March 2004.[19]
[18] Exhibit R2, S19 pages 97 and 98.
[19] Exhibit R2, S21 page 103.
In the hearing the Applicant said his then partner had obtained a DVO to force him to leave the house because she had started seeing his friend and did not want him to find out. He said she spent all their savings on poker machines and hid it from him, they had a big fight, and she went to the police and got the DVO. He admitted having used abusive language[20] but he denied having made the alleged threats.[21]
[20] Transcript, page 43, lines 27 to 34.
[21] Transcript, page 44, lines 15 to 33.
Police records indicate that on 23 December 2004, the Applicant allegedly attended his former partner’s address in breach of the DVO and attempted to assault her. He drove into the driveway and let himself in through an unlocked back door. He then demanded they get back together and she refused. He rushed her but her mother got between them. The Applicant yelled “I will snap your neck” and appeared to try to grab his former partner. He refused to leave. The Applicant was aware of the conditions of the order. He was intoxicated at the time. The police came and he was charged with breaching the DVO (x2).[22]
[22] Exhibit R2, S21 page 103.
The Applicant conceded that he did attend his former partner’s residence while intoxicated. He said she had invited him to her house and told him she had no money and could not survive. He felt sorry for her and gave her rent money. After he gave her the money, she told him to get out of the house or she would ring the police because he was not supposed to be there. He was shocked that she would turn like that, so he argued with her. Her mother called the police. A few months later he went to court and the court dismissed the charges. He heard that she had already admitted to the police that she had lied to them.[23] He denied having threatened to snap her neck[24] and it seemed implicit in his evidence that he denied having engaged in the other alleged conduct too. There is no record in the Applicant’s criminal history of any breach of a DVO, which supports the Applicant’s evidence that the charges were dismissed.
[23]    Transcript, page 10, line 40 to page 12, line 10.
[24]    Transcript, page 44, lines 40 to 44.
The Applicant said that his former partner and her mother always made false accusations and sometimes he caught them on the phone doing it to other people.[25] I note that the police records contain a note that in early January 2005 the former partner told the police that someone (the name is redacted) had been calling the police making false allegations that the Applicant had been breaching the order.[26] When this note was read to the Applicant in the hearing, he said he believed the person whose name was redacted was his former partner’s mother.[27] The note therefore tends to support the Applicant’s evidence that, at least, his former partner’s mother was prone to making false allegations against him. Further, with respect to the 23 December 2004 incident, the former partner either made or went along with the initial allegations, then apparently withdrew them which calls her honesty into question.
[25]    Transcript, page 45, lines 35 to 37.
[26]    Exhibit R2, S20 pages 99 and 100.
[27]    Transcript, page 80, lines 1 to 11.
On balance I do not find the allegations made by the Applicant’s ex-partner or her mother to be more reliable than the Applicant’s evidence. I am not satisfied that he engaged in any of the aggressive or threatening behaviour alleged by her or her mother. I accept his explanation for his attendance at her residence in December 2004.
In 2005, the Applicant’s elder sister was diagnosed with blood cancer. His father was later diagnosed with lung cancer. He said this shattered him and he could not deal with the sadness so he resorted to drugs after, according to him, having been clean for around five years. [28]
[28] Transcript, page 12, lines 15 to 26; Exhibit A1, page 3 paragraphs [19] to [22]; Transcript page 12 lines 20 to 26.

On 30 May 2005, the Applicant was found in possession of heroin - 13.254 grams in total containing 3.101 grams of pure heroin, and $2,600 in cash.[29] He co-operated with the police and named his supplier. The sentencing court accepted that the heroin was for the Applicant’s personal use but noted that it was quite a large quantity for personal use. In October 2005, he was sentenced to imprisonment for 18 months, suspended for three years after serving six months. The learned Judge said:
“You have previously been convicted of heroin offences. At the age of 18 you were dealt with for a heroin offence in New South Wales. At the age of 23 you were dealt with in the ACT for possession, sale and supply of heroin. At that time you were sentenced to nine months imprisonment to be released after six months on a bond with supervision for two years. You also have been convicted of various weapons offences, street offences, one offence of dishonesty. As the Prosecutor submitted, it is a pattern of persistent offending.” [30]
[29] Exhibit G10, page 56; Exhibit R2, S18 page 96.
[30] Exhibit G1, G10, page 56.
On 4 December 2006 the Applicant was given written notice that Minister intended to examine whether there were grounds to refuse his application for a Resident Return Visa under section 501(1) of the Act. In a letter dated 8 August 2007, the Department sent the Applicant’s lawyer a notification that advised that on that occasion the Minister had decided not to refuse the application. However, it warned him that any further conduct bringing him within the provisions of s 501 would lead to the question of visa cancellation being considered and also consideration could be given to refusing any future visa applications made by him. It stated:
“Disregard of this warning will weigh heavily against him if the Minister or his or her delegate considers his case again in the future”.[31]
[31] Exhibit G1, G32.a, pages 336 and 337.
There is a break in the Applicant’s criminal history between 2006 and 2010 except for a drink driving infringement in November 2009.[32] During this time, he was employed as a labourer from 2006 to 2007, he was in Vietnam between November 2007 and August 2008[33], and he was employed again as a labourer from 2009 to 2010.
[32] Exhibit R2, S35 page 132.
[33] Exhibit G1, G35, page 342.
When the Applicant returned to Australia in August 2008, he completed an Incoming Passenger Card (“IPC”). There was a question about criminal convictions to which he answered “no”. He claims that he thought the question referred to offences committed while he was in Vietnam, although that is not what the question said. The Applicant had only recently received a warning from the Department that related to his offending in Australia. He knew his offending was known to the Department. He had then spent most of the following year in Vietnam. It is not implausible that he thought the Government was interested in convictions it did not know about, namely any that had occurred during his stay in Vietnam. I am not satisfied that the Applicant’s incorrect answer on the IPC was dishonest, although it was careless.
According to the Applicant’s sister, “Ms O”, the Applicant had a long history of mental illness, and his significant mental health condition developed in around 2007 after her father passed away. The following year, their older sister died of cancer. It has been very stressful for the family ever since. As the eldest brother, the Applicant tried to look after everybody in the family.[34] The Applicant’s youngest brother, “Mr Q” also said the Applicant had taken on the burden of becoming the head of the family. He thought that may have contributed to his mental illness.[35]
[34] Exhibit G1, G28, page 325.
[35] Exhibit G1, G14, page 87.
In 2009, the Applicant commenced a relationship with “Ms T” and they had a child, “Child A”, in July 2010. Ms T suffers from bipolar and borderline personality disorder and requires medication. When she was pregnant with Child A she had to cease taking her medication. This was detrimental to her relationship with the Applicant. Although, according to her, he remained patient, loyal and devoted, the personality clashes worsened.[36] She recalled being exhausted and hormonal and that she had a moment of psychosis when she went to attack the Applicant but he did not engage and he did not become aggressive.[37] She went to live with her parents, and the Applicant visited.[38] It appears that from this time onward, the Applicant lived at least some of the time with his brother “Mr L” where their mother also lived.
[36]    Exhibit G1, G14, pages 91 and 92; G25, pages 310 to 314.
[37]    Transcript, page 149, lines 40 to 46.
[38]    Exhibit G1, G14, pages 91 and 92; G25, pages 310 to 314.
Later in Ms T’s pregnancy, the police in the town where she lived became aware of the Applicant’s criminal record and told her they did not want him coming there. She told the Applicant she still loved him but that he could not visit anymore.[39] The Applicant recalled that this happened in May 2010. It caused his mental health to break down and he was admitted to hospital. He took a lot of Valium and alcohol, and he smoked marijuana. Notes from the Inala Mental Health Service indicate that the Applicant was admitted to a psychiatric unit of a hospital in June 2010.[40]
[39] Ibid.
[40] Exhibit G1, G21, page 159.
The Applicant was not able to see Child A until she was around three months old. On 5 August 2010, after Child A was born but before he was able to see her, the Applicant called the police and said he might have tried to kill himself. The police attended and the Applicant showed them an empty packet of schizophrenic medication and he claimed that his doctors were wanting to kill him, and that he had been dealt injustices throughout the whole world. He had written out what he called “death warrants” for his doctors. His manner was threatening, and his moods were cyclical, ranging from calm to aggressive, changing quickly. He rambled constantly about his paranoid tendencies and eventually police were able to convince him to attend the hospital where an Emergency Examination Order was completed for him to receive assessment.[41] He was again admitted to the hospital psychiatric unit.[42]
[41] Exhibit R2, S16 pages 92 and 93.
[42] Exhibit G1, G21, page 159.
In February 2011, Ms O’s husband, “Mr O”, who was also the Applicant’s best friend died of a heroin overdose.[43] The Applicant’s nephew had called him to check on Mr O and get him out of the toilet because he had been in there for a long time. He was slumped against the door so the Applicant had to break the door down. He saw Mr O on the ground which was “very scary”. He called the ambulance and did CPR on Mr O. He recalled Mr O’s tongue was going in and out. He said:
“I think he passed away before I got there, and his spirit was go away when he was in my arms, tried to save him. I performed CPR, but I can’t do anything to help him. The ambulance come - came not long after and say that he already died 20 minutes ago. I can’t save him.”[44]
[43] Exhibit G1, G28, page 325.
[44] Transcript, page 17, lines 1 to 14.
The Applicant said the only people in his family who were using drugs were Mr O and himself.[45]
[45] Transcript, page 17, lines 17 to 33.
In March 2011, the applicant was admitted to a psychiatric ward after the police found him wandering and streets with a sword, wanting to hurt himself and others.[46] The exact date is not apparent.
[46] Exhibit G1, G21, page 139
On 21 March 2011, the Applicant was charged with rape. According to him, a woman with whom he was having casual sex made the allegation after he told her he did not want a relationship and that he loved Ms T. He said that when he was charged with rape, his friends and family treated him differently, and his family were ashamed.[47]
[47] Transcript, page 18, lines 40 to 47.
According to police records, when the police attended his home to arrest him, he was extremely uncooperative and continually threatened to harm the police and himself. When the police attempted to transport him to the hospital, he repeatedly smashed his head against the police car barrier. The vehicle stopped and he was removed. He struggled with the police and kicked out on several occasions. He was restrained on the grass face down. He continued to struggle, rolled over, faced a police officer and spat at her. Spittle landed on her shirt.[48] Throughout this episode, the Applicant was extremely violent and said, “You caused this, you pay for this, I kung fu master” and “I kick you, you no last 3 seconds”.[49]
[48] Exhibit R2, S3 page 64.
[49] Exhibit R2, S3 page 60.
A Queensland corrective services report dated 29 November 2012, states that the Applicant denied he had assaulted a police officer. He said he had been pushed to the ground by the police which resulted in him having a mouthful of dirt and he consequently vomited on the ground and had “accidentally” spat on a police officer as he was clearing his mouth. He said he was under the influence of alcohol.[50] In the hearing, the Applicant denied that he had physically assaulted the police, saying he was trying to defend himself when he was assaulted. [51] He also denied having spat. He said he had accidentally vomited because he could not control his head. He said his head was forced down and his hands were cuffed behind him and he could not breathe and felt nearly unconscious. When he sat back up the vomit came straight out of his mouth and landed on the officer’s hand.[52] The Applicant was subsequently convicted in relation to the kicking and spitting. I am inclined to accept that he kicked out, whether he incorrectly thought he was doing it in self-defence at the time, and that there was some vomiting and an aspect of involuntariness about the spitting, noting that he not in his right mind at the time.
[50]    Exhibit R2, S76 page 262.
[51]    Transcript, page 38, lines 35 to 44.
[52]    Transcript, page 39, lines 25 to 33.
In 2011, Ms T started a new relationship and her new partner who forced her to cut ties with the Applicant. It was not until 2016, when that relationship ended, that the Applicant was able to have contact with Child A.[53]
[53] Transcript, page 13, line 14 to page 14, line 14.
On 6 December 2011, the Applicant was found in possession of dangerous drugs (cannabis), utensils or pipes etc that had been used and property suspected of having been used in connection with the commission of a drug offence. He was fined on 26 June 2012.
Notes from the Inala Mental Health Service indicate that on 24 July 2012 that the Applicant was living with his mother and receiving social security benefits. He had had a number of presentations to the hospital psychiatric unit (June 2010, August 2010, March 2011) mainly in the context of intoxication with cannabis. Currently there were no active psychotic symptoms and he appeared quite flat and blunted. He reported using cannabis to deal with his stressors, but he denied frequent use. He was compliant with his medication however remained argumentative about it. It was noted that he had poor insight and was not happy with the medication and being on an involuntary treatment order.[54]
[54] Exhibit G1, G21, page 159.
In the hearing the Applicant explained that the medication for schizophrenia made him sleep so he was only awake for a few hours each day. He felt useless at everything, as though he was half dead. He did not want to take the medication, but he did because if he did not he knew the police would arrest him and put him in a hospital. He used drugs to combat the medication, to keep him awake.[55] He could not work because his medication meant that he could not wake up early and he needed to take it so he would not have a schizophrenic episode at work.[56] The Respondent did not challenge that his medication had these side effects. It is common knowledge that some schizophrenia medication has the side-effects the Applicant described. I accept his evidence in this regard.
[55] Transcript, page 21, lines 21 to 40.
[56] Transcript, page 27, lines 35 to 43.
In September 2012, the Applicant was convicted of rape and sentenced to imprisonment for five years and three months. He was also convicted of serious assault in relation to having spat on a police officer, and sentenced to imprisonment for three months (concurrent). He had earlier been fined for kicking the police during the same episode. Around a year later, his rape conviction was set aside on appeal. The Crown did not proceed with a second trial. The Respondent did not invite the Tribunal to make a finding that the Applicant was guilty of rape, and I do not think the evidence before me supports such a finding.
According to the Applicant, when he was in prison, every time he walked past the door to the yard, a few people who were already standing there hit him in his ribs or kicked him in his bottom or punched him in the back of the head. When he turned around and looked, they told him to “Get the f--k out of here before you die”. They told him he should go to the protection area or he may die. This happened at least twice a week. A senior inmate threatened to stab him. He thought he was targeted because people knew he was in prison for rape. He did not report these matters because he feared retribution.[57]
[57] Transcript, page 19, line 26 to page 20, line 46.
After the Applicant’s release from prison, he was plagued with bad memories of prison and once again he resorted to drugs. He was taking the medication, and he used marijuana to sleep and methamphetamine to stay awake.[58]
[58] Transcript, page 21, lines 3 to 40.
According to Ms O, the rape allegation and wrongful imprisonment completely crushed the Applicant’s mental health. She saw how he struggled with mental health and drug addiction afterwards. She said he was broken by the emotional and reputational damage that the rape charge did to their mother in the community.[59]
[59] Exhibit G1, G28, page 325.
Mr L described the Applicant’s year in prison as the last straw for the Applicant because of the shame that that it brought on the family, especially their mother, in their small community. He said the successful appeal did not wash the shame away. He referred to the Applicant having been abused in prison and described him as “fully shattered” upon release. He started smoking marijuana from time to time and slowly progressed to hard drugs.[60] Mr Q also said that after the Applicant was wrongfully imprisoned, he found comfort in substance abuse.[61] The Applicant lived with Mr L and their mother after he was released. His mother said he had a lot of nightmares, and that his temper was harsh, and it affected him a lot.[62]
[60]    Exhibit G1, G30, pages 331 and 332.
[61]    Exhibit G1, G14, page 87.
[62]    Transcript, page 115, lines 45 to 47.
I accept that the Applicant was attacked and threatened in prison, and I accept that the allegation, conviction and imprisonment impacted him in the way he and his family described.
According to police records, on 1 November 2013, they were called because the Applicant was holding a metal pole that was approximately 1.5m long and banging it against property, ranting and raving. When they arrived, they saw a woman frantically place two children in a vehicle parked in the driveway and quickly drive off. They then saw the Applicant on the veranda of the residence. He was waving his arms around, jumping up and down and ranting in a mix of English and another language. When he saw the police, he assumed a bladed stance, and began clenching his fists and waving his arms around with rapid body movements, while yelling. The police told him to get on the ground, but he lifted a leg in a kicking position and waved his hands in a motion to signal the police to come at him. The police used capsicum spray.[63]
[63] Exhibit R2, S3, page 39.
In the hearing the Applicant agreed that he had raised his leg and he said he told the police to “Get f—ked” but he could not recall anything after he was capsicum sprayed which rendered him unable to see. He only remembers waking up in hospital.[64]
[64] Transcript, page 41, lines 6 to 13.
The police records indicate that, after he was sprayed, the Applicant tried to elbow a police officer who was trying to restrain him. He continued resisting and kicked an officer in the legs numerous times. Amphetamine and heroin were found in his pocket. He was subsequently admitted to the hospital.[65] He was later fined $300 for assault or obstruct police officer.
[65] Exhibit R2, page 39.
In February 2014, the Department issued a written warning to the Applicant, by letter to an address in New South Wales, that further offending or conduct that comes within the scope of s 501(6) of the Act could result in the consideration of the cancellation of his visa.[66] However, the Applicant claims he was no longer living at the address in New South Wales. Ms T’s evidence of the Applicant’s change of address corroborates his claim. There is no evidence that he received the letter. I am not satisfied that he received that warning.
[66] Exhibit G1, G32.b, pages 338 and 339.
Medical notes from the Inala Mental Health Service, dated 6 February 2014 indicate that the Applicant’s brother reported the Applicant being increasingly aggressive towards the family, including his elderly mother and younger children. His mother had to leave the house when the Applicant became more verbally abusive. Ongoing drug use was suspected. The Applicant “Declined to have ongoing depot”[67] (depot being his medication).
[67] Exhibit G1, G21, page 127 to 128.
In the hearing, the Applicant said he could not remember that incident as he was having an episode. He said he might have yelled at his family but he never physically hurt them.[68] His mother said that the verbal abuse was the Applicant shouting things with no meaning.[69] She denied that the Applicant ever shouted or smashed things around the nieces or nephews.[70] She also denied that the Applicant had ever been violent or aggressive towards her or her family,[71] although she recalled him being hot tempered and damaging things.[72] Mr Q has always lived in Sydney: he was not the brother referred to. Mr L denied that the Applicant was aggressive or violent towards family members,[73] although he said the Applicant would smash his own possessions.[74]
[68]    Transcript, page 51, lines 4 to 6.
[69]    Transcript, page 119, lines 40 to 43.
[70]    Transcript, page 120.
[71]    Transcript, page 118, lines 39 to 43.
[72]    Transcript, page 119, lines 5 to 8.
[73]    Transcript, page 134.
[74]    Transcript, page 133, lines 25 to 35.
Medical notes dated 7 March 2014 indicate that the Applicant refused the depot, maintaining he “is not crazy”. He was noted to have regularly refused treatment in the past, had a history of non-compliance and required police assistance for acute treatment.[75]
[75] Exhibit G1, G21, pages 132 and 133.
Medical notes dated 9 April 2014 indicate that:
·the Applicant had reported that in 1998 he had held a gun to his head with the intention of killing himself but was interrupted by his aunt and did not go through with it;
·in August 2010 he was brought to hospital by the police after expressing suicidal ideation and making death threats to police and doctors;
·in March 2011 he was brought to hospital by the police and was found wandering in the street with a sword wanting to hurt himself and others; and
·he exhibited intimidating behaviour and hostility towards the police and mental health services. He was acutely psychotic with grandiose and persecutory delusions and was refusing to continue treatment. He made threats towards mental health staff if he was not paid compensations of millions of dollars within a week for treating him against his will with depot medication.[76]
[76] Exhibit G1, G21, page 139.

There was another break in the Applicant’s criminal history from 2014 to 2015.
In 2016, Ms T allowed the Applicant to have visits with Child A, which she described positively. She recalled it being challenging because the Applicant was asleep for most of their visits because of his medication. She described him as “broken”.[77]
[77] Transcript, page 148, line 28 to page 149, line 25.
On 22 November 2016, the Applicant was caught in possession of heroin. The police notes indicate that the Applicant’s brother had contacted the police because the Applicant was assaulting him and damaging property. The police saw a clip seal bag containing white powder in his bedroom which tested positive for heroin.[78]
[78] Exhibit R2, page 35.
The Applicant recalled breaking the TV and the stereo. He was talking to the speaker from the stereo and it would not listen to him so he smashed it. His brother came to ask what was wrong and told him to stop. He yelled at his brother and his brother could not stop him so he called the police.[79] He denied having assaulted his brother.[80] Mr L said the Applicant was damaging property but he did not assault him.[81] The Applicant was not charged with any violent offence. On 16 December 2016, the Applicant was fined $1,000 for possessing dangerous drugs.
[79]    Transcript, page 51, lines 31 to 44; page 52, lines 5 to 10.
[80]    Transcript, page 52, line 1.
[81]    Transcript, page 135, lines 23 to 26.
The Applicant was caught in possession of cannabis on 30 May 2017 and 20 February 2018. The offences on 20 February 2018 were detected because the police were called to a disturbance where the Applicant was damaging his own property. He seemed to be drug affected. The police saw cannabis and, when questioned, the Applicant confirmed that only he lived at the residence. He told the police he had been smoking cannabis and sniffing butane gas. The police also found a waterpipe.[82] An Emergency Examination Authority was issued in relation to the Applicant.[83] He was sentenced to a fine for the May 2017 offences and a suspended prison sentence (two months) for the February 2018 offence.
[82] Exhibit R2, pages 24 and 31.
[83] Exhibit R2, pages 79 and 80.
On 19 July 2020, the Applicant committed wilful damage. The police records indicate that the Applicant was supposed to receive an injection on a fortnightly basis to control his schizophrenia but refused and as a result had regular, almost monthly, mental health episodes. On that day, the Applicant had gone to Harvey Norman and purchased a mobile phone. Upon exiting the store, he began yelling “I need to kill the dragons”. He got into a vehicle, turned his music up and stayed out the front of the store sounding his horn and playing music extremely loud. He was told to leave the car park but did not. Instead, he re-entered the store and engaged in delusional behaviour. He calmly walked up to a Smart TV and punched the screen, causing the screen to crack and become inoperable. He was escorted out of the store. Police attended and took him to hospital for a mental health assessment.[84]
[84] Exhibit R2, S3 page 16.
Hospital staff noted that the Applicant seemed to be under the influence of substances. He denied being under the influence of methamphetamine and said he could not remember when he last used illicit substances. They also recorded that the Applicant’s judgement was chronically impaired by ongoing use of substances.[85]
[85] Exhibit G1, G20, pages 149 and 150.
On 20 July 2020 an Emergency Examination Authority was issued in relation to the Applicant.[86] The police notes about that include that the Applicant had reportedly been acting erratically, having hallucinations and delusions and damaging property around him. When spoken to by police, he was unable to stay focused on simple questions in relation to events that had occurred that day. His brother had reported the Applicant had been engaging in erratic, violent aggressive behaviour by smashing property around himself. He had consumed alcohol and it was not known if he had taken drugs. The police assessed that the Applicant could not be left safely with the help of others and that if no action were taken, he could be hurt or attempt suicide.[87]
[86] Exhibit R2, S5, page 73.
[87] Exhibit R2, S4 to S5 pages 72 to 75.
The Applicant could not remember that incident as he was having an episode.[88] When Mr L was asked about it, he seemed to recall a different episode, describing a time when his mother and his sister saw the Applicant lying on the floor with no energy and he kept saying “I want to die”. Mr L had called the ambulance and the ambulance took him away. He said the Applicant seemed “out of it”.[89]
[88] Transcript, page 53, lines 1 to 14.
[89] Transcript, page 135, lines 30 to 48.
On 18 November 2020 the Applicant was sentenced to three months imprisonment, suspended for three years for wilful damage. He was ordered to pay $1,995 in compensation.
On 15 October 2020, the Applicant was caught in possession of methamphetamine, cannabis, a waterpipe and digital scales.[90] His bail was revoked on 26 February 2021 and he was held in custody until 7 May 2021 when he was sentenced for the offences. For “possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4” he was sentenced to imprisonment for 12 months with a parole release date of 25 June 2021. For possessing dangerous drugs, possess utensils or pipes etc that had been used, and possess property suspected of having been used in connection with the commission of a drug offence, he was sentenced to imprisonment for five months (concurrent) with the same parole release date.
[90] Exhibit R2, S3 page 11.
In passing sentence, the learned Magistrate said:[91]
“This, of course, is not your first conviction for possessing illegal drugs. This has been a continuing feature of your existence since at least 20 – 2005, when you were sentenced to 18 months for possession of schedule 1 drugs in excess of – of the schedule 3, again. And then you’ve been repeatedly convicted of drug offending ever since.
There’s no evidence before me that you’ve ever done one single thing to address your drug use – your illegal drug use, that is: that you’ve ever taken any steps to obtain any sort of drug counselling or any sort of treatment program in order to cease it. And on this occasion, of course, you were found with over four grams pure – 4.2 – sorry, 4.2 grams, gross, of ice. I’m not told the purity of it, but ordinarily it’s around about 70 per cent. So you’ve got more than two grams, at least, of pure drug.
…
The more relevant issue is the – your schizophrenia, which, as Dr Stewart, the consultant psychiatrist who has been seeing you in the prison, has said, has been complicated by your longstanding polysubstance abuse. I interpret that to mean, in fact, exacerbated by your longstanding drug abuse. So you have not helped yourself either by constantly taking illegal drugs.
The quantity in this case is significant, as must be obvious from the fact that the Court of Appeal has said and agreed that around 18 months as a head sentence is an appropriate sentence for someone possessing that quantity of drug, of methylamphetamine. It is an insidious and destructive drug that is a cancer in our society. Those who purchase it and use it contribute to the spread of criminality throughout the community. People like you who buy it provide a market, contribute significantly to the spread of criminality throughout the community because those who import or obtain the ingredients to cook up ice, those who traffic it and those who sell it would not be able to do any of those things if it was not for people like you who buy it.
And, secondly, it is a – as I said, a cancer in our society because my straw poll of me and the matters that I deal with suggests to me that ice use is involved in probably half to two-thirds of the criminal offending that we see before the Court. It is certainly behind the majority of burglaries, robberies, car thefts, all of those sorts of things that cause enormous damage to other members of the community. So the use of ice has to be stamped out, and those who take it, in my view, need to receive a deterrent penalty so that it operates to motivate them to cease their illegal drug use.”
(Underlining added)
[91] Exhibit G1, G7 pages 47 to 50.
It was submitted by the Respondent to demonstrate that the Applicant’s mere possession of methamphetamine for personal use is harmful to the community because it drives production. The underlined passage appeared to have been relied on in support of that submission. However, I do not accept that producing methamphetamine per se is harmful. The harm is in its consumption by members of the community, and in the nefarious activity that is incidental to the illegal drug trade. The Applicant bought quantities of methamphetamine that were for his personal use and there is no evidence that he took it in large quantities. I am not satisfied that his contribution to the market in methamphetamine, and thus his contribution to driving production, would have been more than miniscule. I respectfully agree with the learned Magistrate’s second observation about methamphetamine induced crime, which provides strong reason to deter methamphetamine use. In this case, there is no evidence that the Applicant committed offences to fund his drug taking but it appears that methamphetamine use may have caused his mental health to deteriorate – see paragraph 79 below.
A Dr Stewart, consulting psychiatrist with the prison mental health service (“PMHS”), treated the Applicant while he was in prison. In a letter dated 12 April 2021, he said the Applicant suffers from a chronic and debilitating schizophrenic illness complicated by his long-standing polysubstance abuse. The Applicant remained quite stable and engaged with PMHS and continued to accept his treatment, being “depot” antipsychotic medication administered fortnightly. He noted that the Applicant was also treated as an involuntary patient under a treatment authority under the Mental Health Act 2016 (Qld). He said the Applicant would like to live with his mother and continue regular follow-up with the Hospital Mental Health Service and that he would require long-term support from mental health services in the community.[92] The Applicant said that when he was in prison, Dr Stewart introduced him to a different medication. It is not clear to me what the change was, and it appears he was still taking depot in some form. However, the Applicant said with this change, he stopped hearing things and did not experience the side-effects.[93]
[92]    Exhibit G1, G19, page 121.
[93]    Transcript, page 22, line 42 to page 23, line 15.
Records from the International Health and Medical Service (“IHMS”) indicate that the Applicant continued the new medication but that he was still sleeping more than he wanted to and asked for the dose to be reduced. Notes from September 2021 record that he was not experiencing symptoms, but he was sleeping from 6pm to 11.30am and feeling tired and unmotivated. They also mention he had engaged in Drug and Alcohol counselling and was finding it helpful.[94] His depot was then reduced, resulting in the Applicant being “brighter in mood” although he was still sleeping a lot.[95]
[94] Exhibit A2, page 17 of 41.
[95] Exhibit A2, page 15 of 41.
A file note dated 22 October 2021 indicated that the Applicant reported that previously relapses had occurred when he was taking methamphetamine, but he was not using illicit drugs and did not have craving either. He wanted to reduce his medication because he was sleeping too much. He said he was aware he had a mental illness and needs antipsychotic treatment but wanted the lowest dose possible. He said he was not a danger to others and, when unwell, thinks others will hurt him, but does not want to hurt others. He requested some standby Olanzapine in case he became paranoid, saying it helps him sleep and then he wakes up feeling better.
It was also recorded that he had said he was keen to find out if he really has a mental illness by coming off medication, and he really wanted to know what was wrong with him. He said no one had ever been able to convince him that he had symptoms of a mental illness. Doctors told him and his mother said he could be aggressive when unwell, but he did not think that was true.[96] This directly contradicts the Applicant’s reported acceptance that he has a mental illness recorded in the same file note. It may be that the file note contained a summary of things the Applicant said over time.
[96] Exhibit A2, page 9 of 41.
The Applicant recalled that in October his medication was reduced from “300 to 100”.[97] The IHMS notes support this, with a note on 30 October 2021 recording a reduction to of a component of his medication to 100mg.[98] The Applicant described it as the minimum dose and said it allows him to stay awake instead of sleeping 20 hours per day and always feeling drowsy and stupid. He takes a tablet daily. He now feels normal again and able to go back to work because he can wake up early in the morning and not sleep during the day.[99] If he hears voices in his head, he is able to stop it and monitor himself when that happens.[100]
[97]    Transcript, page 83, lines 5 to 12.
[98]    Exhibit A2, page 5 of 41.
[99]    Transcript, page 23, lines 1 to 24.
[100] Transcript, page 33, lines 34 to 39.
On 29 October 2021, the Respondent decided not to revoke the cancellation of the Applicant’s visa. In late November 2021, the Applicant engaged with NA, attending daily meetings.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction, relevantly, specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)…;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)…;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant has a lengthy criminal history with frequent offending. His early offending is reflective of an antisocial lifestyle and attitude. It includes chasing people with a knife, selling heroin, making threats to kill and smashing a glass door, and drink driving. Selling heroin, a deadly drug, is extremely serious, and the prison sentence the Applicant received reflects the seriousness of that offending. In 2005, the Applicant was found with a quantity of heroin that seemed very big for personal use, and I doubt that it was only for personal use given his history of dealing heroin and the large amount of cash that was found. Again, the Applicant received a prison sentence for that offending. Following that, and the warning that his visa could be cancelled, there was a break in his offending for a few years. When the Applicant resumed offending, the offences he committed, and the attendant circumstances were more reflective of mental illness than a criminal attitude.
The Applicant’s assaults on police and threats to police and medical staff all occurred in the context of florid schizophrenia. He also harmed himself during these episodes, e.g. banging his head against a police car barrier. Police and mental health staff put themselves in harm’s way, day-in and day-out, to keep members of the community safe and well. They deserve respect, not threats and aggression. They certainly should not be assaulted. The criminal law provides higher penalties for assaulting police offers and the Direction recognises that violence toward government officials in the performance of their duty is particularly serious.
The Applicant has also been aggressive in the presence of family members although they deny that he ever threatened or assaulted them, and I accept that. He damaged property on multiple occasions. His behaviour at Harvey Norman not only resulted in the destruction of merchandise, but it must have been frightening for those people who were present. The three month prison sentence imposed for that reflects the seriousness of his behaviour.
The Applicant’s possession of drugs and drug-related items for his own use mostly harmed him, but to the extent that it contributed to psychotic episodes, the harm extended to others who may have felt afraid or whose property was damaged. His most recent possession of methamphetamine and related items was met with a substantial period of imprisonment.
There is not a discernible increase in the seriousness of the Applicant’s offending as it was quite serious to start with. He continued to offend even after a warning from the Department. He provided false information to the Department in an IPC but he did not do that dishonestly.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following relevant factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending.
Should the Applicant engage in further supply of drugs such as heroin, the harm includes addiction, accidental overdose, drug related crime, and the misery caused to addicts and those who love them. That is, the harm includes catastrophic harm.
The harm from further acts of aggression and threats includes physical injury and psychological trauma to medical staff, police, and members of the public, and emotional distress to family members. The harm from further drug use is that it can lead to the other types of harm already mentioned as well as property damage. The harm from drink-driving includes a higher risk of collision that could lead to serious injury and death.
Overall, the harm from further offending includes serious and even catastrophic harm.
Likelihood of engaging in further criminal or other serious conduct
The Applicant claims he will not re-offend. He said he accepts that he has a problem with his mental health, and he needs medication.[101] He conceded that he used to refuse to take his medication because he did not think he had a mental health problem, and it made him sleep too much and feel like he could not do anything. He said he now realises he has schizophrenia.[102] He came to that acceptance around six months ago because when Dr Stewart gave him his new medication, he stopped hearing things straight away, he then stopped taking it and the voices came back. He takes it every day now because he does not want the voices to come back.[103] He knows that he must take his low-dose medication every day otherwise he will start having auditory hallucinations again.[104]
[101] Transcript, page 57, lines 17 to 44.
[102] Transcript, page 54, lines 36 to 48.
[103] Transcript, page 55, lines 9 to 23.
[104] Transcript, page 28, lines 9 and 10; page 30, lines 2 to 5.
The Applicant’s family pooled their savings to pay his legal fees in relation to his visa. He considers that it is his responsibility to get a job and replenish that money.[105] He said he plans to stay off drugs completely, monitor his mental health closely, take his medicine on time, see a psychiatrist, contact Centrelink and get a job. If he cannot get a job he will volunteer with the Salvation Army of which his mother is a member. He will engage in drug and alcohol counselling, and counselling for post-traumatic stress disorder, and engage with the NA community who he considers to be his new family.[106]
[105] Transcript, page 24, lines 39 to 48.
[106] Transcript, page 30, lines 34 to 48; page 31, lines 1 to 3.
According to Ms T, the Applicant has promised Ms T and Child A that he will continue to take his medication and better himself. [107] Mr L speaks with the Applicant every few days, and he has noticed that he is totally different now: he does not seem sick anymore and he has more of a sense of humour.[108] His mother said that before the Applicant’s incarceration she noticed that whenever he missed his injection his behaviour became hot tempered and he tended to raise his voice.[109] She has noticed a change in him recently and said he is now very sweet and friendly.[110]
[107] Exhibit G1, G25, pages 310 to 314.
[108] Transcript, page 129, lines 26 to 34.
[109] Transcript, page 117, lines 19 to 24.
[110] Transcript, page 117, lines 29 to 39.
The Applicant was asked what he would do if the low dose of medication that he is on becomes ineffective and he is told he needs to have higher doses that make him feel tired. He indicated that he would go to the hospital for a second opinion where they have up to three doctors who can make an assessment.[111]
[111] Transcript, page 59, line 28 to page 60, line 18.
It is apparent that previously nothing and no-one was able to persuade the Applicant to manage his schizophrenia and abstain from drug use. Ms O said that after the Applicant’s was released from prison in 2013 the family spoke to him a lot about his drug use and mental health, they implored him not to keep using drugs and reminded him to go to his mental health appointments. She checked whether he had attended appointments and when he had not, she talked to him for hours on end and cried and implored him to go and attend the appointment. Ms O thinks her efforts would be more successful now because over the last nine months the Applicant has thought a lot about things and come to terms with a lot of things.[112]
[112] Transcript, line 34 to page 99, line 35.
The Applicant’s change in attitude has occurred in the context of his new medication, a term of imprisonment and the cancellation of his visa. The Applicant has previously ceased offending after being imprisoned and warned that his visa could be cancelled. The offending that preceded that warning seemed to reflect a general disrespect for the law. The offending that occurred after was very much linked to mental illness and drug abuse. The Applicant explained that he used drugs in an effort to deal with the awful side effects of the medication he had to have for his schizophrenia. He is now taking medication that effectively treats his schizophrenia and does not produce those side-effects. This is an extremely significant change in terms of ensuring better compliance with medication and abstention from illicit drug use. The Applicant has not used illicit drugs in prison or immigration detention, and, in recent months, he reported that he does not crave drugs.
The Applicant did not have sufficient time and opportunity to enrol into rehabilitation programs in prison. However, he has engaged in drug and alcohol counselling and attended NA while in immigration detention.
Mr Z has been a member of NA for five or six years. He has known the Applicant for approximately two months as he has attended the same NA meetings that the Applicant has been attending via video conference, and Mr Z has spoken with the Applicant by phone. He said the Applicant independently reached out to him and other group members in order to maintain connection and continued abstinence. Mr Z sees that as an indication, in addition to his meeting attendance, that the Applicant is making constant efforts to improve his recovery.[113] Mr Z said that the Applicant has attended the meetings every single night since the end of November 2021.[114] He considers this to be an uncommon amount of attendance. Normally newcomers would attend once or twice a week. In the Applicant’s first meeting he asked Mr Z to find him a sponsor and he has contacted Mr Z directly separate from meetings for support and general discussion.[115] Mr Z explained that the most critical part of maintaining abstinence is maintaining connection and regular attendance. Members can help a fellow member maintain abstinence if they are struggling.
[113] Exhibit A5; Transcript, page 109, lines 29 to 34; Transcript, page 113, line 11.
[114] Transcript, page 109, lines 35 to 48.
[115] Transcript, page 110, lines 4 to 14.
Mr Z said that based on the Applicant’s attendance in the last couple of months he is working the program correctly.[116] He said if someone stops attending meetings, people will notice their absence and reach out to them. It is not incumbent on a sponsor to chase a person but if a person is aware that attending meetings is helping their recovery than even if they relapse, they know the door is always open, there is no shame in coming back, and they will be welcomed with open arms, so it is quite common for people who do relapse to come back.[117]
[116] Transcript, page 110, lines 20 to 30.
[117] Transcript, page 112, lines 14 to 34.
Mr Z was asked if there are people who show a lot of participation in the program around the time of a court date or some other process but then stop participating after the court date has passed. He said no, however what he has seen is a “toe in the water” effort normally for other reasons for example a person’s family have told them to sort themselves out. He has never seen anybody maintain the level of attendance that the Applicant has for any reason other than recovery. He said he would expect that if the Applicant’s attendance was not for the purpose of recovery than it would be vastly less frequent and less honest, for example a negligible amount of sharing, negligible attendance, probably not real participating or looking at the camera, not asking questions and not reaching out to anybody. He said he had not seen anything that would indicate that there is anything untoward in the Applicant’s attendance so far.[118]
[118] Transcript, page 113, lines 5 to 19.
The Applicant said he receives a daily phone call from NA to check on him. In addition, when he thinks of drugs, he gives them a call so they can talk him out of it. He said he has woken up to himself. He now gets up early in the day, does exercise and feels healthy. He is back to reality again.[119] The Applicant has been of good behaviour while in prison and immigration detention.
[119] Transcript, page 23, lines 30 to 47.
Ms O believes that the Applicant is committed to staying away from illegal drugs and will strive to live as a better person.[120] She said she would make sure the Applicant sees mental health professionals and she will persist in talking to him until he agrees to go.[121] When reminded that she was unable to make him go to appointments before, she said that if the Applicant wants to be with his family and does not want to be sent away, he will need to abide by the rules.[122] Ms O lives very close to Mr L who the Applicant will live with if he is returned to the community.
[120] Exhibit G1, G28, page 325.
[121] Transcript, page 100, lines 35 to 46.
[122] Transcript, page 101, lines 10 to 13.
According to the Applicant, Mr L has put cameras everywhere in his house. His mother and sister are going to check up on him. His whole family know about his drug use now so in his words “I’m just have to stay good behave myself and not make any more otherwise going to be no good”.[123]
[123] Transcript, page 24, lines 10 to 24.
The Applicant said he will give Mr L and Ms O permission to send him to rehab and report him to the police if he uses drugs again. He said they have already done that in the past. If they thought he was doing the wrong thing again, they would speak up, and report it to the police or mental health services.[124]
[124] Transcript, page 25, lines 1 to 32.
Mr L said the family have made contact with the Inala Mental Health Service to make sure the Applicant will receive mental health treatment in the community, and the Applicant is fully cooperative. At the Applicant’s request, they have made enquiries with drug and alcohol services so he can receive ongoing counselling support. Knowing the importance of keeping him occupied with better choices they have found two jobs that he can take up upon his release.[125]
[125] Exhibit G1, G30, pages 331 and 332.
There is a letter before me from the Inala Adult Mental Health Service, dated 8 July 2021, noting that the Applicant has been a patient there since 2010 and that he had an established diagnosis of paranoid schizophrenia complicated by polysubstance abuse. The letter confirms that the service will provide ongoing treatment, case management and rehabilitation services to facilitate the Applicant’s recovery if he released to the community. Furthermore, the Applicant wishes to engage in employment and ongoing counselling for his addiction and the service can provide support and referral to both services as part of his mental health recovery.[126]
[126] Exhibit G1, G20, page 122.
The Applicant’s mother, who lives with Mr L, said the family would monitor the Applicant “24/7” to make sure he attends to mental health treatment, takes his medication on time, and obtains ongoing support from and employment agency and drug and alcohol Services.[127]
[127] Exhibit G1, G27, pages 323 and 324.
Mr Q lives in Sydney. He is willing to give the Applicant part-time work in his company as a field worker.[128] Mr Q strongly believes that their family would work together on support mechanisms to minimize the Applicant’s chances of re-offending.[129] Mr Q would only be able to help pay for a treatment program or rehabilitation program up to a certain extent because they had pretty much exhausted everything for legal proceedings.[130] Ms O would be able to help to support the Applicant financially and pay for a treatment program if that was needed.[131]
[128] Exhibit G1, G29, page 327.
[129] Exhibit G1, G29, page 327.
[130] Transcript, page 106, lines 16 to 21.
[131] Transcript, page 98, lines 13 to 20.
Ms V is a Vietnamese Australian. She has known the Applicant and his family for around 20 years. She operates a butcher shop in Inala. She is aware of the Applicant’s criminal history, that he was using illegal drugs for a long time, and that he suffers from schizophrenia. She does not regard the Applicant as a violent person or a threat to the community. She has offered the Applicant a job with flexible hours and roles to accommodate his parole conditions, mental health appointments and physical ability. In her written evidence, she said she was not worried about him having access to sharp tools and knives as she is confident that he is not a violent person and on the path of rehabilitation this time.[132] When it was put to her that when the Applicant has a schizophrenic episode he sometimes damages property, and she was asked if she would still be prepared to give him access to knives and sharp tools, she gave a rather convoluted answer that seemed to indicate that as long as she knew about his condition she would be able to manage him. I take that to mean that she would revisit her decision about whether the Applicant should have access to knives and sharp tools.[133]
[132] Exhibit A6.
[133] Transcript, page 146, lines 8 to 24.
The Applicant was asked if he was concerned that if he is returned to the community, he might threaten somebody with a knife given his history of using knives. He said he did not think so that he is afraid of knives now, and that a few months before he was incarcerated he called the police and asked them to come and get a knife from his house that people had given him as a gift. He is no longer interested in knives as a weapon, and he stopped doing that in 2003.[134] I note that in 2011, the Applicant was found wandering the street with a sword and threating to hurt himself and others. That was ten years ago, and there are no reports of the Applicant being in possession of knives or the like since then. I am inclined to accept that the Applicant will stay away from knives and that Ms V will deploy him in a way that does not give him access to knives.
[134] Transcript, page 34, lines 15 to 24.
Ms T stays in contact with the Applicant. She said she is the only person who can connect to him when his mental health deteriorates.[135] She appears to be very concerned for his wellbeing and determined to help him stay in Australia for the sake of their daughter. However, despite her efforts, she was unable to keep him from substance abuse and schizophrenic episodes over the last several years. I am satisfied that, if the Applicant is able to maintain contact and visits with Child A, this would have a stabilising effect and give him strong reason to stay well and sober.
[135] Exhibit G1, G14, pages 91 and 92; G25, pages 310 to 314.
I must assess the Applicant’s risk of re-offending in the absence of an expert opinion about that. The Applicant has his family’s support, and supports in the community including NA. He does not want to be deported. He has not used illicit substances since February 2021 when he was remanded in custody. On the other hand, he has a long history of drug abuse and poor management of his schizophrenia. Normally, in those circumstances, I would be very circumspect about his ability to maintain abstinence and good mental health if returned to the community. However, he is now taking medication that works and does not have terrible side-effects. This combined with his determination to avoid deportation and stay in Australia with his family and daughter, and the supports available to him, lead me to the conclusion that his risk of re-offending is much lower now than it was immediately before he entered custody. Further, given the change in the nature of his offending after 2010, I think there is no more than a remote risk that the Applicant will engage in aggression with knives, the supply of illicit drugs or drink-driving. That is, the risk largely relates to drug use and the aggression, threats, damage to property and violent resistance towards police that tend to accompany florid schizophrenic episodes.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs against revocation of the cancellation of the Applicant’s visa. Balancing the seriousness of some of his offending with the present risk of harm, the weight I allocate is somewhere between moderate and heavy.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
I am not only to consider family violence that is the subject of a conviction. I am to consider information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, where the non-citizen has been afforded procedural fairness.
The Direction defines family violence to include threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. The Applicant engaged in aggressive behaviour, being yelling and the destruction of property, in the presence of family members. His family did not indicate that they were coerced or felt fearful. Rather, they knew he was experiencing an episode and it seems that their only thought was to contain the Applicant’s behaviour and get help for him. I am not satisfied that the Applicant engaged in family violence for the purposes of the Direction.
Conclusion: Primary Consideration 2
This Primary Consideration is neutral.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

Child A is 11 years old. She is an Australian citizen. The Applicant has had very limited involvement in her life so far although that was not by choice. Since 2016, he has visited and communicated with her by phone. According to Ms T, the Applicant always supported her and Child A financially. He said he did that using his Centrelink payment.[136]
[136] Exhibit G1, G12, page 67.
The Applicant denied ever having experienced a serious mental episode or having been affected by illegal drugs while with Child A.[137] According to Mr L, Child A does not know the full details of the Applicant’s offending, but she knows that he is in prison for serious mistakes that he made. She told him “It is okay daddy, just promise me that you will learn from it and never do it again”.[138]
[137] Transcript, page 67, lines 26 to 35.
[138] Exhibit G1, G30, pages 331 and 332.
The Applicant currently speaks with Child A around three to five times each week on FaceTime or messenger. They talk about what is going on in her life.[139] The Applicant is friendly with Child A’s current step-father and considers that he treats her well. He does not think her step-father has any mental health or substance abuse problems and described him as a “very quiet man”.[140]
[139] Transcript, page 29, lines 1 to 16.
[140] Transcript, page 31, line 36 to page 32, line 26.
Ms T’s mother provided a letter of support in which she said she has known the Applicant for 12 years and over that time he had struggled with severe mental health. She described him as a kind, caring and supportive person. She said the Applicant and Child A now have a very strong loving bond together. She thinks that Ms T and Child A had a calming influence on the Applicant when he is experiencing “severe mental health”. She is worried that without Ms T and Child A, the Applicant would not be able to cope and that he would take his own life.[141]
[141] Exhibit G1, G14, page 90.
Child A provided a statutory declaration and gave evidence. She said before she turned six, Ms T’s relationship ended, and she was introduced to the Applicant. She described their first meeting in detail. It is clearly a happy memory for her. Her belief is that the Applicant will try and get better because he knows that she and Ms T do not want to go through this experience again and he knows how much they love him. She said that if the Applicant is removed from Australia, she will be devastated. She has grown to love her step-father but there is an empty space inside her that only the Applicant can fill.[142]
[142] Exhibit G1, G24, pages 306 to 308.
Ms T thinks, in hindsight, that Child A was depressed before she connected with the Applicant. She said since the Applicant has been on his new medication they laugh, they interact, they talk on the phone “for ages” and Child A does not seem depressed anymore.[143] Although, she also said that Child A has been exhibiting more depressive moods and her overall mental health has declined throughout these proceedings at the thought of losing her father.[144]
[143] Transcript, page 150, lines 4 to 15.
[144] Exhibit G1, G25, pages 310 to 314.
Ms T has other children who live with her. She pointed out that when Child A is with the Applicant, she gets his undivided attention, and she is doted on - it is the only time she gets to be “number one”.[145] She thinks the last two years of constant contact between the Applicant and Child A have helped Child A to flourish. Child A is half-Vietnamese whereas the rest of her family are not. Ms T stated that Child A is still finding herself as a person and she needs the Applicant and his family to help her through that as they are a huge part of who she is culturally. She thinks the Applicant’s physical absence would be detrimental to Child A’s mental health and sense of identity.[146]
[145] Transcript, page 148, line 28 to page 149, line 25.
[146] Exhibit G1, G25, pages 310 to 314.
I accept that, to the extent that the Applicant has been able to be involved in Child A’s life, that involvement has been positive for Child A. I do not think the Applicant could maintain regular communication with Child A from Vietnam because of the difficulties he is likely to experience (which I will canvass in the Other Considerations) and they would not be able to visit each other. Given the Applicant’s previous thoughts of suicide, Ms T’s mother’s concerns, and the real possibility that he would not be able to manage his mental health in Vietnam (see discussion below), I am cognisant of the risk that the Applicant might try to take his own life in Vietnam, which would be very detrimental to Child A.
Child A is currently cared for by Ms T and her step-father in parental roles. It appears that her maternal grandmother is also around. However, Child A’s family circumstances are far from ideal, given her mother is afflicted by a serious mental illness and the father figure in her home is a step-father who has not been around long. This child does not have a parental figure who prioritises her, is committed to her for the long term, and has stable mental health. The Applicant could be such a person if he manages his mental health and abstains from drug use. While the Applicant would not live with Child A, he could communicate with her and visit, or she could visit him. He is also the gateway to the rest of his family, whereby Child A could benefit from the kinship and support of an aunt, two uncles, a paternal grandmother and many cousins. The Applicant’s mother and siblings referred to Child A in their evidence and I am satisfied that they are genuinely interests in her wellbeing. Given these matters, revocation of the cancellation of the Applicant’s visa is very much in Child A’s best interests.
Ms O has three children under the age of 18. They are 17, 13 and three years old respectively. Ms O does not have a partner.[147] She described the Applicant as being a very empathetic brother and having cared for her five children over the years.[148] He used to help her children with their schoolwork, and he played with them. He spent time with her family almost on a daily basis as they only lived a five-minute walk from each other. He never appeared to be affected by drugs or to be suffering a mental health episode when he was with her family.[149] All her children love him and look up to him.[150] The Applicant said he is like a second father to Ms O’s children because their father passed away.[151] As his culture is extremely family-oriented, he was constantly visiting and helping all his nieces and nephews and he has a bond with all of them. He said their love and affection helps him a lot at times.[152]
[147] Transcript, page 94, lines 40 to 44.
[148] Exhibit G1, G14, page 86.
[149] Transcript, page 95.
[150] Exhibit G1, G28, page 325.
[151] Transcript, page 67, lines 42 to 45.
[152] Exhibit G1, G12, page 71.
Mr L has two children under 18. They are 10 and eight years old respectively. He said he lived with Mr L and supported his children daily. He thinks it would cause immediate heartache to them if he is deported.[153] Mr L is no longer with the mother of these children and it is unclear from the evidence when they are in his care.[154]
[153] Exhibit G1, G12, page 71.
[154] Transcript, page 68, lines 5 and 6.
I accept that the Applicant has close, loving relationships with these children, having lived with some and visited the others daily. I accept that he stepped in after Mr O died, although I do not accept that he currently fulfils a parental role or that he would be called upon to do that. These children all have at least one parent fulfilling that role and they have their grandmother close by. The Applicant’s continued presence in Australia would undoubtedly benefit these children, especially if he remains drug-free and manages his mental health. Accordingly, his absence would deny them that benefit. I do not think he could maintain communication with them if he were deported to Vietnam.
Conclusion: Primary Consideration 3
Taking into account the best interests of the children mentioned above, particularly Child A, this Primary Consideration weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind, relevantly:
…
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties
…
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·the Applicant moved to Australia in 1991 when he was 16 years old. He is now 46 years old;
·he commenced offending less than two years after moving to Australia;
·he has engaged in very serious offending including dealing heroin and assaulting police;
·he has committed numerous offences and he continued to offend despite sentences of imprisonment and a warning from the Department that further offending could result in the cancellation of his visa;
·from 2011, the Applicant’s offending has been very much tied to his mental health and drug use, and his drug use was tied to the side-effects of his mental health medication;
·there is now a lower risk that he will re-offend;
·he held employment until his schizophrenia medication made it impossible;
·there is no evidence of voluntary work or other productive engagement in the community outside assisting his family;
·he has suffered the loss of his father and sister from cancer, years of separation from his (now-ex) partner and daughter, the traumatic death of his best friend from a drug overdose, various negative impacts arising from his wrongful conviction and imprisonment for rape, and frequent abuse and threats in prison; and
·if he is removed to Vietnam, it is unlikely that he will get the treatment he needs for his mental illness, and his removal will adversely affect his family and ex-partner (addressed below under Other Considerations, and above under Primary Consideration 3).
Conclusion: Primary Consideration 4
Considering all relevant factors, Primary Consideration 4 weighs to a moderate extent in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The claims that the Applicant makes with respect to the difficulties he expects to face in Vietnam are not of the kind that could engage Australia’s non-refoulement obligations, and no such claims arise on the evidence. This Other Consideration is not relevant. I will address his claims under Other Consideration (b).
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant lived in Vietnam until he was 16 and he spent nearly a year there in 2007-2008. I am satisfied that the Applicant would not face any substantial language or cultural barriers in Vietnam.
The Applicant is a 46 year old man who is able bodied, although he has Hepatitis B and he has suffered chronic right knee pain for 15 years.[155] He also suffers from schizophrenia for which he requires treatment, and, according to him, some residual trauma from the wrongful rape conviction.
[155] Exhibit A2, page 11.
I accept that given the Applicant’s age, knee condition and lack of qualifications, it could be difficult for him to find suitable employment as he may have to resort to manual labour roles which would be physically challenging. His schizophrenia, if not adequately treated, will also be a major barrier to maintaining employment as it has been in Australia. The Applicant claims he would not cope physically or mentally in a country where he knows absolutely no one and he would be without his family.[156] His mother confirmed that the family does not have any current contacts there who could support the Applicant in any way.[157]
[156] Exhibit G1, G12, page 76.
[157] Exhibit G1, G27, pages 323 and 324.
I have been provided with the DFAT Country Information Report Vietnam dated 13 December 2019[158] (“DFAT report”). It indicates that the poor are eligible for a social assistance benefit from 60 years of age, but there are major gaps in coverage, with only around 3% of the population reported to have received regular social assistance benefits in 2016.[159] The Applicant is 46 years old, well short of the eligibility age. The Applicant’s family put all their savings into this legal process.[160] Mr Q said the family could probably support the Applicant in Vietnam financially but indicated it would only be short-term because they had already spent most of their savings and that could not continue.[161] Ms O said she would be willing to provide financial support to the Applicant in Vietnam.[162] I am satisfied that the Applicant’s family would try to provide some financial support to him in Vietnam although the extent of the support they could provide is not known.
[158] R2, S99 pages 336 to 382.
[159] Exhibit R2, pages 344 and 345.
[160] Exhibit G1, G30, pages 331 and 332.
[161] Transcript, page 103, lines 40 to 45.
[162] Transcript, page 98, lines 22 to 25.
The Applicant will need medical and mental health care in Vietnam. He fears that he will not be able to afford the treatment and medication he needs, and he will have nowhere to live, he will get very depressed, and he will die.[163]
[163] Transcript, page 31, lines 8 to 16.
The DFAT report indicates that a Vietnam has a social health insurance scheme which is accessible by the poor and vulnerable, although it seems to be limited to treatment in designated government facilities. Government facilities are supported by non-government organisations (“NGOs”), social organisations and other community partners.
A 2015 government report found that mental health issues were estimated to affect around 10% of the population, of which 200,000 people were classified as severely mentally ill. Mental health services are largely inadequate. Currently, mental health and psychosocial services are provided through social welfare and social protection centres, mental health hospitals and psychosocial units in schools. NGOs are increasingly providing mental health and psychosocial related services, and familial and community-based support is also common. Herbal medicine and shamanism are also used to treat mental illness in some areas. A 2018 study found that while explicit stigma toward mental health patients was declining, many people were still reluctant to access mental health services due to perceived stigma.
Based on the DFAT report, it may be that the Applicant would be able to access the specific medication he needs to effectively manage his schizophrenia without debilitating side effects, however given the inadequacy of mental health services in Vietnam, that is far from certain. It is not apparent whether trauma counselling would be available to him. He will be in a different position to other Vietnamese citizens who suffer from schizophrenia in that he will not have any familial or community support and he will be suffering the emotional hardship of being permanently separated from his family. If he is not able to manage his mental health effectively, he will not be able to function and support himself.
As the Applicant initially claimed that he engaged Australia’s non-refoulement obligations, I asked if he thought anyone would try to harm him in Vietnam. He said no one would try to harm him unless he had done something wrong to them. He made some spurious claims, which I reject, that the government would discriminate against him because it would somehow find out that he was a drug addict in Australia and that if he had a relapse he would not know what he had done to people in they may harm him in return.[164] The key problem for the Applicant is that he is a person who suffers from schizophrenia, who will have no family or social support whatsoever in Vietnam, who may not be able to financially support himself, and who will be in a place where mental health service are inadequate. These matters combined are likely to create a major barrier to the Applicant establishing himself and maintaining basic living standards in the context of what is generally available to other Vietnamese citizens.
[164] Transcript, page 72, line 40 to page 73, line 35.
This Other Consideration (b) weighs heavily in favour of revocation of the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
None of the Applicant’s family members who witnessed aggression from the Applicant consider themselves to be victims of that behaviour and they each deny that the Applicant was violent to them. They each provided evidence solely in their capacity as close family members. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims of the Applicant’s crimes. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia

The Applicant came to Australia while still a minor, at the age of 16. He has lived in Australia for nearly 30 years. He commenced offending less than two years after arriving.
The Applicant has held gainful employment but for the last decade the medication he had to take for his schizophrenia rendered him unable to work. He has not done any voluntary community work. He does not appear to have any significant social links to the Australian community.
The Applicant’s mother, sister, two brothers, two adult nephews, two uncles, two aunts and three cousins live in Australia.[165] There is insufficient evidence about his relationship with his aunts, uncles and cousins. He has three children from previous relationships who he does not appear to have any contact with. He is close with the other members of his family.
[165] Exhibit G1, G12, page 72.
Mr Q said that despite the Applicant’s shortcomings with substance abuse and his struggles with mental health, he has always been a loving and caring father, son and brother.[166] Mr L said he spent most of his life with the Applicant and they were living under the same roof before his incarceration. The Applicant was always there for him when he was in need and taught him right from wrong.
[166] Exhibit G1, G14, page 87.
The Applicant said that as he is the oldest sibling in the family, he tries to support everyone especially his mother who still suffers deeply from the loss of his father and elder sister.[167] Mr L said the family was still suffering from the loss of their father and older sister, and they are all frightened about the Applicant’s visa having been cancelled.[168] He said their mother used to socialise a lot, but she has not since the Applicant was incarcerated. She has no energy to get up and do things, she is eating less, and he thinks she has depression.[169] The Applicant’s mother said her health and emotions went downhill when the Applicant went to court and was imprisoned unexpectedly on 26 February 2011, which I think is a reference to 26 February 2021 which is the day the Applicant was remanded in custody prior to being sentenced for his most recent offending. She said she is more depressed and worried since she found out that his visa was cancelled.[170]
[167] Exhibit G1, G12, page 72.
[168] Exhibit G1, G14, page 88.
[169] Transcript, page 130, lines 20 to 28.
[170] Exhibit G1, G14, page 89.
I accept that the Applicant’s mother may well be suffering symptoms of depression as a result of the cancellation of the Applicant’s visa. The Applicant’s family all fear that he will not get adequate treatment in Vietnam and he will be without support there. I am satisfied that the Applicant’s removal to Vietnam will cause further emotional hardship to the Applicant’s mother and siblings. While there is no evidence form the Applicant’s adult nephews, I am satisfied that they have an emotional bond with him and would be saddened by his deportation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
Overall, I am satisfied that the Applicant’s links to the Australian community weighs moderately in favour of revocation.
CONCLUSION
Weighing all of the relevant factors as the Direction requires me to do, I am of the view that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
As I have pointed out, the change in the Applicant’s medication is a very significant factor in his favour in terms of lowering his risk of re-offending. The fact that the treatment he needs is available in Australia but may not be in Vietnam is another significant factor in his favour. If he does not take full advantage of the new medication regime, and he resists his medication and/or returns to drug use, he will no longer have those factors in his favour in the event that his visa is mandatorily cancelled or considered for cancellation. The Applicant and his family appeared to appreciate that this was his last chance.
DECISION
The decision under review is set aside and the Tribunal exercises the discretion contained in section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 172 (one hundred and seventy two) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..........................[SGD]..............................................
Associate
Dated: 31 January 2022

Date of hearing: 10 and 11 January 2022

Solicitor for the Applicant:

Mr Ton Chau

Condor Migration

Counsel for the Respondent

Solicitor for the Respondent

Ms Natasha Laing

Minter Ellison

ANNEXURE A - EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G37 paged 1 to 373)

R

-

15 November 2021

A1

Applicant's Statement of Facts, Issues and Contentions (12 pages)

A

-

1 December 2021

A2

International Health and Medical Service (IHMS) Records (56 pages)

A

-

1 December 2021

A3

Applicant’s Authorities

A

-

1 December 2021

A4

Applicant’s Reply (12 pages)

A

-

4 January 2022

A5

Letter from Ms V (2 pages)

A

5 January 2022

5 January 2022

A6

Letter from Mr Z (1 page)

A

5 January 2022

5 January 2022

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 14)

R

20 December 2021

20 December 2021

R2

Respondent’s Supplementary Documents (S1 to S99, paged 1 to 382)

R

-

20 December 2021

[2022] AATA 114

24 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G37 paged 1 to 373)	R	-	15 November 2021
A1	Applicant's Statement of Facts, Issues and Contentions (12 pages)	A	-	1 December 2021
A2	International Health and Medical Service (IHMS) Records (56 pages)	A	-	1 December 2021
A3	Applicant’s Authorities	A	-	1 December 2021
A4	Applicant’s Reply (12 pages)	A	-	4 January 2022
A5	Letter from Ms V (2 pages)	A	5 January 2022	5 January 2022
A6	Letter from Mr Z (1 page)	A	5 January 2022	5 January 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 14)	R	20 December 2021	20 December 2021
R2	Respondent’s Supplementary Documents (S1 to S99, paged 1 to 382)	R	-	20 December 2021