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

Ornelas and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3182 (30 September 2022)
Division:GENERAL DIVISION
File Number(s): 2022/5902
Re:Joao Octavio Sil Ornelas
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Mr S. Webb, Member
Date:30 September 2022
Place:Canberra

The 11 July 2022 decision of the Minister’s delegate not to revoke the mandatory cancellation of Mr Ornelas’ Class BF transitory (permanent) visa is set aside. In substitution, the Tribunal revokes the cancellation of Mr Ornelas’ Class BF transitory (permanent) visa.
………..…..
Mr S. Webb, Member
Catchwords
MIGRATION – mandatory cancellation of visa – representations – decision not to revoke cancellation – substantial criminal record – visa applicant fails character test – consideration whether another reason for revocation – Ministerial Direction No. 90 – primary and other relevant considerations – protection of Australian community from criminal or other serious conduct – expectations of the Australian community – mental illness – extent of impediments if removed – links to the Australian community – balance of considerations weigh in favour of revocation – decision set aside and substituted
Legislation
Migration Act 1958 (Cth), ss 499, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Swaddling v Adjudication Officer [1999] ECR I-1075
Secondary Materials
Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
REASONS FOR DECISION
Mr S. Webb, Member
30 September 2022

Joao Ornelas was born in Portugal. He arrived in Australia when he was 3 years old. He was subsequently issued a Class BF transitional (permanent) visa. Mr Ornelas suffers from chronic mental illnesses. He committed crimes and was sentenced to a term of imprisonment. Consequently, his visa was cancelled. Mr Ornelas made representations seeking revocation of the cancellation. A delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) decided not to revoke the visa cancellation. Mr Ornelas applied for review of the non-revocation decision by the Tribunal.
Background
The following background facts are established by the evidence before the Tribunal.
Mr Ornelas was born in 1973 in Madeira, Portugal.
He was a little over 3 years old when he first entered Australia in 1977 in company of his mother and two siblings, a brother and a sister. The family joined his father, who was already present in Australia at that time. They resided at Enmore.
In 1983, the family relocated to Portugal for 2 years. The records confirm Mr Ornelas departed Australia on 12 July 1983 and he returned on 25 January 1986.[1] On returning to Australia, the family took up residence at Penrith.
[1] G19.
Mr Ornelas completed Year 10 and subsequently obtained trade qualifications as a steel fixer. He obtained employment in the construction industry in Sydney. He was promoted to Leading Hand at the age of 18.
In or about 1991, Mr Ornelas moved out of his parents’ home to live with his then partner, “P”. In 1992, they had a daughter “DS”. Things did not go well. In 1995, the relationship disintegrated in circumstances that were difficult for Mr Ornelas.[2] He asserts P became addicted to heroin and left him for her dealer and, sometime thereafter, she was charged, convicted and imprisoned, leaving DS in Mr Ornelas’ care. Mr Ornelas’ evidence is that once P was released from prison, she took custody of their daughter. Mr Ornelas maintains he challenged this, but his challenge failed as he was not listed on DS’s birth certificate as her father. He claims P subsequently showed him a photograph of DS, but he has had no further contact with her after she was removed from his care. He asserts P died following an overdose of heroin and DS was taken into the care of her maternal grandparents. His evidence is in 2015 he looked for and found DS on Facebook, and discovered he had a granddaughter. He was unable to pursue contact with DS and the granddaughter, however, as he was ‘blocked’ from her Facebook account.
[2] Exhibit 2, TB3, folios 369 and 370.
I am satisfied the failure of Mr Ornelas’ relationship with P and the removal of DS from his care had a deleterious effect on his mental health. Mr Ornelas was admitted to hospital for psychiatric treatment in 1996 and on several subsequent occasions. Mr Ornelas’ mother suffered from probable Schizophrenia and, as will appear, Mr Ornelas also suffers from this condition.
In 2002, Mr Ornelas was granted a Disability Support Pension as his Schizophrenia rendered him unable to work. It was at or about this time, Mr Ornelas became homeless and engaged in criminal conduct involving drugs. Thereafter, as will appear, he committed a string of criminal offences and he engaged in serious conduct of a concerning nature.
With regard to his visa status, in 1994, by operation of law, Mr Ornelas was transferred onto a Class BF transitional (permanent) visa (Visa). He resided in Australia as a non-citizen.
On 21 May 2021, Mr Ornelas was remanded in custody, and, on 24 August 2021, he was convicted of an offence for which he was sentenced to an aggregate 12-month term of imprisonment with a 6-month non-parole period running from 21 May 2021.
On 17 September 2021, Mr Ornelas was notified his Visa had been cancelled under s 501(3A) of the Migration Act 1958 (Migration Act).[3] He was invited to make representations to the Minister within 28 days, seeking revocation of the decision to cancel his Visa.
[3] G11.
On 20 October 2021, Mr Ornelas made representations to the Minister.[4]
[4] G14.
Following his release from prison, on 21 November 2021, Mr Ornelas was taken into immigration detention, whereupon he was interviewed and provided information about his circumstances.[5]
[5] G17.
On 17 March 2022, Mr Ornelas was asked to provide further information in respect of his revocation request. He provided a written response on 18 Aril 2022.[6] On 2 June 2022, he provided additional information about his personal circumstances.[7] He provided further information on 3 July 2022 in which he stated:
My homelessness and mental health adiction to drugs & alcohol in the past. In the past has got me into alot of trouble. Its making it difficult top see the true decent caring kind caring kind hard working man I have been and that I still am.
Deep down I am a man who believes in god and is very religios, Ive been baptised and have my holy comunion and confirmation that ive done in Sunday school church. I have been brought up with respect and manners that my parents showed and tought me to respect others and to be polite and honest.
Now that my past life has changed alcohol & drugs that was ruling my life no longer do, I now feel better ive been clean for almost one year now, im feeling good and determined not to dring andnot to take drugs ever again not because only my visa was cancelled but also the decent familly that I come from I have been an honest hardworking decent man in the past. Im on mediction for my mental illness that I need to take daily and now feel stable and my craving for drugs are mutch mutch less and I feel good about myself. And I feel very determined about myself to give drugs & alcohol up for good, rather than be a victim of drugs & alcohol and distroy the rest of my life and be disrespectful to myself and others like ive been in my past. Before its to late.
I can and I will act and engage with the right suport to help me overcome drugs & alcohol more work with my doctors to overcome the adictions for good that is my goal and that Australia would see the decent man that I am and will be in the future and prove to the Australians that I am worthy once again of staying in Australia. To show Im not wasting my life away and wasting my life away and wasting the time of Australians.[8]
[6] G16.
[7] G15.
[8] G18.
On 11 July 2022, a delegate of the Minister decided Mr Ornelas failed the character test in s 501(6) of the Migration Act and there was no other reason to revoke the decision to cancel his Visa.[9]
[9] G3, folio 9.
On 19 July 2022, Mr Ornelas applied to the Tribunal for review of the delegate’s decision.[10]
[10] G1.
Criminal conduct
Mr Ornelas has a long history of offending conduct which spans more than 20 years. His first convictions were in respect of driving offences for which he was fined in 1993.[11] Thereafter, Mr Ornelas was convicted of more serious offences, including:
[11] G6, folio 31.
(a)1 drug supply offence on 26 April 2002 and 7 drug possession or self-administration offences in the period from 7 June 2005 to 9 December 2016;[12]
[12] Ibid, folios 30-31.
(b)10 property-related or stealing offences in the period from 28 May 1999 to 26 February 2021;[13]
[13] Ibid, folios 26-31.
(c)2 breach of bail offences;[14]
[14] Ibid, folios 26 and 31.
(d)prior to convictions on 24 July 2019 and 24 August 2021 which I will deal with separately:
i.4 common assault offences (convictions on 18 December 2013, 16 October 2015, 9 December 2016 and 17 October 2018); [15]
[15] Ibid, folios 29-31.
ii.2 common assault (domestic violence) offences (convictions on 18 May 2011 and 11 October 2017);[16]
iii.2 resist officer in execution of duty offences (convictions on 9 January 2008 and 9 December 2016);[17]
(e)on 24 July 2019 Mr Ornelas was convicted of offences he committed on 7 March 2019, namely common assault, assault occasioning actual bodily harm and behave in an offensive manner in/near public place/school, for which he was sentenced, in aggregate, to a 15-month term of imprisonment;[18] and
(f)on 24 August 2021, Mr Ornelas was convicted of offences he committed:
i.on 12 February 2021: carry out sexual act with another without consent, wilful and obscene exposure in/near public place/school and behave in an offensive manner in/near public place/school; and
ii.on 2 May 2021: assault occasioning actual bodily harm
for which he was sentenced, in aggregate, to a 12-month term of imprisonment.[19]
[16] Ibid.
[17] Ibid.
[18] Ibid, folios 27-28; Exhibit 2, TB1 folios 19-23.
[19] Ibid, folio 26; Exhibit 2, TB1 folios 3-6.
Even though Mr Ornelas entered guilty pleas in respect of these offences, he now contests some facts alleged by NSW Police in the Facts Sheets placed before the courts. Mr Ornelas gave sworn evidence in the hearing and he was extensively cross-examined over several hours.
Mental health
There is no dispute, and I am satisfied, Mr Ornelas suffers from chronic Schizophrenia and Substance Use Disorder.
These diagnoses are consistent with the assessment of Dr Chew (a senior consultant general and forensic psychiatrist), who produced 2 reports,[20] and gave oral evidence. Reports by Dr Willing (an advanced trainee in forensic psychiatry), Dr Burns (a consultant psychiatrist),[21] Dr Berry (a senior clinical neuropsychologist)[22] and Mr Justin Harris (a psychologist)[23] largely support Dr Chew’s opinion.
[20] Exhibit 1, folios 17-31 and Exhibit 2, TB1, folios 29-32.
[21] Exhibit 2, TB2, folios 62-63.
[22] Ibid, folios 88-93.
[23] Ibid, folios 102-105.
I note Dr Burns reported in 2017 following a single consultation with Mr Ornelas. It was his opinion at that time Mr Ornelas suffered from antisocial personality traits as well as Schizophrenia and Substance Use Disorder.[24] Dr Burns was not called to give oral evidence. Dr Chew examined Mr Ornelas in 2019 and in 2022 and did not report any such traits or a personality disorder. In his oral evidence, Dr Chew explained he did not consider Mr Ornelas’ symptoms of aggression and intense anger to be clinically significant. I prefer Dr Chew’s evidence on this point as it is more recent and Dr Chew had the benefit of examining Mr Ornelas on two occasions.
[24] Ibid, folio 63.
In his 2013 report, Mr Harris did not refer to Schizophrenia. He reported diagnoses of Borderline Personality Disorder and Substance Abuse Disorder.[25] Mr Harris was not called to give oral evidence, so it is not possible to test his diagnostic opinions. Dr Chew explained that risk of self harm is a significant feature of Borderline Personality Disorder, which is generally associated with risk to self not others, whereas Anti-social Personality Disorder with psychopathology is of greater concern with respect to criminal behaviour. Dr Chew did not consider related features of Mr Ornelas’ case to be clinically significant. He explained, while Mr Ornelas’ anger and other symptoms (Mr Ornelas experienced suicide ideation following the demise of his relationship with P) might be within the diagnostic criteria for Borderline Personality Disorder set out in the Diagnostic and Statistical Manual of Mental Disorders, a diagnosis of Schizophrenia was made out rather than a personality disorder. Mr Harris is a psychologist not a psychiatrist capable of making psychiatric diagnoses. For these reasons I prefer Dr Chew’s evidence on matters of psychiatric diagnosis. I am not persuaded Mr Ornelas suffers from Borderline Personality Disorder.
[25] Ibid, folio 102.
Mr Ornelas’ Schizophrenia was first diagnosed in or about 1996. Subsequently, he has been hospitalised for treatment of this condition on several occasions, with lengthy admissions in 1996, 1999, 2002, 2006 and 2010.[26] The condition causes him to experience psychotic symptoms, including auditory and visual hallucinations, as well as paranoid and persecutory delusions. He has also experienced symptoms of anxiety, depression and suicidality.
[26] Ibid, TB2 folios 90 and 102; TB3, folio 368; TB4, folio 487; TB5, folio 511.
A number of treatments were attempted in the period from 1999 to 2010, including Clopixol, Haloperidol and Triflouperezine.[27] Mr Ornelas gave sworn evidence these early treatments caused him to experience disturbing mental, emotional and physical side effects from which he sought relief by using alcohol and illicit drugs, including cannabis and crystal methamphetamine (ice).
[27] Ibid, TB1, folio 16.
In 2010 and subsequently, Mr Ornelas was prescribed different antipsychotic medication, namely Olanzapine. So long as he complies with the prescribed dosage (10 milligrams per day), this medication is effective in controlling his symptoms.
There is ample evidence Mr Ornelas has repeatedly failed to comply with the prescribed dosage of Olanzapine, resulting in repeated psychotic symptoms.
His evidence is that he used alcohol and illicit drugs to counteract his symptoms. He explained he used ice to feel good and he used alcohol to mellow out and to counter anger, anxiety and other emotions he experienced after using ice.
Once again, there is much evidence Mr Ornelas has repeatedly agreed to undertake drug and alcohol rehabilitation therapies, including counselling and support group work, but he has failed to follow through with this in a consistent or concerted manner.
The evidence clearly demonstrates Mr Ornelas’ mental health conditions, including his psychoses and his use of alcohol and illicit drugs, and his failure to comply with treatment for these conditions, have had profound behavioural, social and practical consequences. When psychotic and intoxicated, Mr Ornelas experiences and reacts to paranoid and persecutory delusions in a disinhibited manner and without rational restraint or reasonable judgement. Dr Berry’s report of his neuropsychological assessment of Mr Ornelas is compelling evidence Mr Ornelas’ cognitive and intellectual functioning has been adversely affected.[28]
[28] Exhibit 2, TB2, folios 91-93.
Since being taken into custody and subsequently into immigration detention, Mr Ornelas asserts he has abstained from alcohol and illicit drugs, with one exception, and he has maintained compliance with therapeutic treatments for his Schizophrenia and Substance Use Disorder. While there may be some doubt about the reliability of his evidence on this point, the balance of the evidence is not sufficient to establish a contrary finding in respect of Mr Ornelas continuing to use illicit drugs and alcohol since he was taken into custody on 21 May 2021 and subsequently into detention on 21 November 2021. These are matters to which I will shortly return.
Issues
As Mr Ornelas made representations in respect of the cancellation of his Visa in accordance with the invitation to do so, the issues for decision in this review are, for the purposes of s 501CA(4)(b):
(g)whether Mr Ornelas passes the character test set out in s 501(6); and if not
(h)whether there is another reason to revoke the cancellation of his Visa.
When deciding these matters, the directions issued by the Minister under s 499(2A), namely Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction), must be complied with.
The Direction sets out Objectives in paragraph 5.1. Applicable principles are set out in paragraph 5.2:
(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 noncitizens 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 noncitizens 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.
The term serious conduct is broadly defined in paragraph 4(2):
In this Direction, serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
Examples: public act that could incite hatred towards a group of people who have a particular characteristic, such as race; intimidatory behaviour or behaviour that represents a danger to the Australian community; involvement in activities indicating contempt or disregard for the law or human rights, or a history of serious breaches of immigration law.
[Original emphasis.]

At the outset of the hearing, an issue arose about proof of facts in respect of criminal convictions on Mr Ornelas’ record. The issue arises in circumstances where Mr Ornelas pleaded guilty to offences without alleged facts set out in Facts Sheets produced by NSW Police being tested or proved. There are two consequences flowing from this.
Firstly, where reliance is placed on alleged facts underlying a conviction, it is not sufficient for the Tribunal to proceed on the basis of the conviction alone when taking into account primary and other considerations that are relevant under s 501CA(4)(b)(ii). Particular facts underlying or incidental to a conviction may be relevant when assessing the nature and seriousness, and the impact, of the person’s conduct.
Secondly, facts alleged by police in documents placed before a court are not disputed, it may be appropriate to accept the alleged facts as true. Where there is no factual contest, agreements may be reached by the parties and appropriate concessions made, whereupon it is for the Tribunal to examine the relevant materials and, where it is reasonably satisfied, to make relevant findings. Where there is disputation about alleged facts underlying a conviction, each party should be given a reasonable opportunity to give evidence about and to test the alleged fact. In circumstances where the alleged facts are controverted by sworn evidence of the person which has been tested in cross-examination, it will be necessary for the Tribunal to weigh up the person’s sworn evidence against the untested factual allegations of police and to make appropriate findings.
The hearing proceeded in this manner and time was allowed for Mr Ornelas’ counsel, Ms Hannah Ryan, to consider her position and to obtain instructions.
Character test
There is no dispute Mr Ornelas fails the character test under s 501(6)(a) as he has a substantial criminal record. This term is defined in s 501(7) to include, under s 501(7)(c), the person has been sentenced to a term of imprisonment of 12 months or more. This applies whether or not the sentence was served or suspended.
Another reason
For the purposes of s 501CA(4)(b)(ii), it is necessary to decide if there is another reason to revoke the cancellation of Mr Ornelas’ Visa.
Primary considerations and other considerations must be taken into account where relevant. The primary considerations set out in paragraph 8 of the Direction are:
(i) protection of the Australian community from criminal or other serious conduct;
(ii) whether the conduct engaged in constituted family violence;
(iii) the best interests of minor children in Australia; and
(iv) expectations of the Australian community.
The other considerations set out in paragraph 9 which must be taken into account where relevant include but are not limited to:
(i) international non-refoulement obligations;
(ii) extent of impediments if removed;
(iii) impact on victims; and
(iv) links to the Australian community, including:
a) strength, nature and duration of ties to Australia; and
b) impact on Australian business interests.
Paragraph 7 provides guidance on applying the considerations:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Protection of the Australian community from criminal or other serious conduct
The matters set out in paragraph 8.1 of the Direction are framed by the Government’s commitment to protecting the Australian community from harm as a result of serious conduct by non-citizens. With this in mind, particular regard is to be had to the principle that remaining in Australia is a privilege that is conferred on non-citizens in the expectation they have and will be law-abiding and they will not cause or threaten harm to individuals or the Australian community. It is also necessary to consider the nature and seriousness of the non-citizen’s conduct to date (paragraph 8.1.1 applies) and the risk to the Australian community should the non-citizen commit further offences or engage in serious conduct (paragraph 8.1.2 applies).
Nature and seriousness of non-citizen’s conduct
As Mr Ornelas’ criminal record demonstrates, he has committed a string of criminal offences since 2002. His first recorded offence was in respect of a minor traffic infringement in 1993 at the age of 20. Six years later, in 1999, he committed a property damage offence. He committed more frequent and more serious offences from 2002.
Additionally, from 1999, Mr Ornelas has engaged in serious conduct of concern below the criminal threshold, which is reflected in records of his numerous interactions with police in Exhibit 2.
At this point, before dealing with specific offences and serious conduct of concern, two aspects of Mr Ornelas’ relevant conduct should be noted.
Firstly, it will be clear by now his conduct in and after June 1999 has been affected by serious mental health conditions, Schizophrenia and Substance Abuse Disorder, and the effects of alcohol and illicit drug use. I accept that these conditions are closely inter-related, and each has been exacerbated by difficult circumstances Mr Ornelas has experienced, including those of his own making. While Mr Ornelas’ psychiatric conditions and the factors which may have contributed to cause or worsen them from time to time may contextualise and assist understanding of his crimes and his conduct of concern, it does not diminish the objective seriousness of his conduct and his culpability for the offences he has committed. His crimes involving violence, including violence against women, and the sexual crime he committed are to be viewed very seriously.
Secondly, despite the erratic nature of Mr Ornelas’ conduct since 1999 there is a pattern to his violent offending and much of his serious conduct, including aggressive and threatening behaviour. Mr Ornelas’ Schizophrenia is managed by antipsychotic medications. When he does not take these medications, he experiences psychotic symptoms, including paranoid delusions and hallucinations. In the past, his use of and likely addiction to alcohol and illicit drugs, especially ice and cannabis, interrupted treatment of his Schizophrenia. When using alcohol and illicit drugs, he often failed to continue taking antipsychotic medications for his Schizophrenia and experienced psychotic symptoms. Furthermore, his use of alcohol, ice and cannabis exacerbated the effect of his psychotic symptoms in two important ways: when affected by alcohol or illicit drugs, he became more reactive to circumstances and threats he perceived as real, and he became more disinhibited, dis-regulated and prone to act impulsively, without reasonable restraint. Dr Chew’s oral evidence on this point is compelling. Rather than a trend of increasing seriousness, the pattern is a destructive cycle of recurrent untreated psychoses, habitual drug and alcohol use, elevated impulsivity and reactivity to perceived circumstances, and repetitive offending and conduct of concern. The repetitive pattern of his offending, including offending while subject to correction and other court orders, and the cumulative effect of the offending is of serious concern.
The most serious violent offences Mr Ornelas committed on 10 December 2010, 7 March 2019 and 2 May 2021 involved assaults occasioning actual bodily harm, in which the violence involved was in the low to midrange of objective seriousness.[29] On 12 February 2021, he engaged in aggressive, abusive and sexual conduct against a woman in a public park.[30] The offences involved aggravating factors which were noted by Magistrate Williams and Magistrate Farnan in their sentencing remarks.[31] The aggravating factors included elements of random violence and racial abuse directed against people of Asian appearance (including women), and they were committed in contravention of community correction orders or bail. Similar factors were present in other violent offences he committed, on 24 February 2018 for example.[32]
[29] Exhibit 2, TB1, folios 3-5 and 19-26; TB2, folios 112-118; G7, folios 36 and 48; G10, folio 52.
[30] Ibid, TB1 folios 7-9.
[31] G7, folios 36 and 48.
[32] Exhibit 2, TB1, folios 34-36.
These offences are viewed very seriously.
Magistrate Williams considered Mr Ornelas’ lengthy criminal history, his history of drug and alcohol use and his mental health issues - Noting the diagnosis it is unlikely he will recover from those [mental health] issues and they will remain with him for the rest of his life.[33] His Honour found special circumstances when imposing an aggregate custodial sentence of 12 months imprisonment.
[33] G7, folio 35.
Magistrate Farnan said:
The most serious matters before me are the assaults committed on 7 March 2019 …
…
Those offences, the actual violence involved, I accept falls in the midrange or low to midrange of objective seriousness. Of course, the seriousness of those offences is aggravated by the fact that, on the face of it, at least, it may have been motivated by hatred for or prejudice against a group of people to which Mr Ornelas believed they [the victims] belong, that being a particular racial group. That, in my view, makes them more serious than they otherwise would be, although, of course, the fact that these are, in essence, random attacks on members of the public in a public place is, of itself, serious enough.
They are also aggravated by the fact that Mr Ornelas was on conditional liberty at the time of those offences. He was both on bail and on community corrections orders and it would appear, also on an intensive corrections order…
…
… Mr Ornelas is a gentleman who has certainly faced some challenges in his life, largely as a result of his mental health condition. It is also to his credit that this is the first time he has been in prison. It suggests that, whilst he has had some interactions with the law in the past, they have not been as serious as the matters that are before me today.
… Mr Ornelas has been medicated for that condition [schizophrenia] in the past and also while has been in custody, he is described as being variably compliant and I have no doubt his lack of compliance with supervision is very directly related to his lack of compliance with his mental health treatment, given the general correlation between those two things. His mental health condition is largely controlled. Certainly, Mr Ornelas previously had a difficulty with illicit drugs and he seems to have overcome that, although the doctor [Dr Chu, a psychiatrist] suggests that one can be somewhat sceptical about his account, but he also assesses that Mr Ornelas is willing to engage with the community mental health team and that is a very positive thing.
…
I do accept that Mr Ornelas is more likely to say things like that [racial abuse] as a result of his mental health condition; that might be a very good reason for Mr Ornelas to comply with the mental health treatment that he is offered by the community health team, because this sort of behaviour is just going to result in longer and longer sentences if Mr Ornelas does not stop behaving in that way. He, I accept, has previously had some compliance with supervision, although, as I have said, it has tended to deteriorate while he has not been complying with his mental health treatment…[34]
[34] G8, folios 10-11.
Mr Ornelas has convictions for 3 assaults against women, including a support worker on 29 July 2016 and his female partners on 26 February 2017 and 10 December 2010. These are viewed very seriously. The facts are largely uncontested, although I note in his oral evidence Mr Ornelas provided contextual detail which does not appear in the NSW Police Facts Sheets placed before the Courts in each case.[35] Even though the contextual details Mr Ornelas provided are somewhat self-serving, and they may assist understanding his state of mind, they do not change the factual basis or the relative seriousness of his offending conduct against women.
[35] Exhibit 2, TB2, folios 61-62, 73-74 and 114-115.
With regard to Mr Ornelas’ attitude to domestic violence, he was closely examined about the following record in the NSW Police Facts Sheet on 10 December 2010:
When spoken to by Police the accused denied he assaulted the victim. However he stated “Its just a domestic” and “We’ve been together for 5 years”.[36]
[36] Ibid, folio 115.
There are two things to say about this.
Firstly, the record raises a question whether Mr Ornelas’ reported remark was an expression of his real views about domestic violence. The phrase ‘Its just a domestic’ suggests a degree of tolerance diminishing the seriousness and the criminality of the violence. Mr Ornelas explained he had experience of domestic violence as a child (his father was strict and beat him occasionally when he transgressed) and it was the norm at that time. It may be accepted his childhood experience may have informed his attitudes and his beliefs as an adult. In any event, the remark is plainly a self-serving attempt to diminish the assault in the eyes of police.
Secondly, whatever attitudes or beliefs he truly held about domestic violence and violence against women at that time, there can be no doubt Mr Ornelas was intoxicated when he was interviewed by Police and allegedly made the remark. Considering the available records, it is very clear Mr Ornelas has repeatedly engaged in violent, aggressive or threatening behaviour and arguments with those around him, regardless of gender, while he was intoxicated, drug affected or psychotic. His treatment of women and female partners in this context is of particular concern.
The earliest record of such behaviour, and there are many, is an incident on 15 June 1999 which appears to involve his mother.[37] In a further incident on 21 October 2013, he verbally abused, threatened and harassed a woman using a walking stick as result of a knee injury.[38] While these and other incidents may not have resulted in criminal charges, Mr Ornelas’ conduct of this kind is of serious concern.
[37] Ibid, TB3, folio 369.
[38] Ibid, folios 327-328
More recently, on 21 March 2020 and on 23 January 2021, Mr Ornelas engaged in abusive and threatening conduct against members of the public, including women, in public places.[39] He was convicted of a sexual offence against a woman of Asian appearance in which he pushed a bicycle at her and racially abused her before dropping his shorts, exposing his penis to her and allegedly masturbating for a brief period. Mr Ornelas contests this allegation to the extent that he did not masturbate. He gave sworn evidence and was closely cross-examined on this point. I accept his sworn evidence that, having dropped his shorts in front of the female victim, he placed his hand under his testicles and ‘flipped the bird’ with his penis. This fact barely changes the seriousness of the offence he committed.
[39] Ibid, folios 159 and 189.
The frequency with which Mr Ornelas has engaged in criminal conduct and other serious conduct of concern since 1999 is a matter of record. This adds to its cumulative effect even though much of the conduct Mr Ornelas has engaged in is at the low to midrange of objective seriousness. Furthermore, as I have said, there is a clear pattern to Mr Ornelas’ serious conduct when he ceases treatment for his mental health condition and resorts to drug and alcohol use.
This weighs against revoking the decision to cancel Mr Ornelas’ Visa.
Risk to the Australian community should the non-citizen commit further offences or engage in further serious conduct
The record of Mr Ornelas’ past serious conduct is a reasonable basis on which to assess the potential harm he may cause the Australian community should he engage in further serious conduct.
The most serious offences Mr Ornelas committed are assaults occasioning actual bodily harm. He committed assaults amounting to family violence and involving violence against women. He committed offences of a sexual nature and offences involving indecency. He has engaged in abusive and threatening behaviour in public and he has a string of low-level drug possession and supply, stealing and property crimes. Mr Ornelas’ conduct does not occur in the abstract, without harm for those affected. As the offences he committed on 1 January 2019 and 24 February 2018 clearly demonstrate,[40] he is prone to random acts of reactive violence and unregulated aggressive behaviour where he perceives a threat or some other provocation. His perceptions are affected by intoxication as well as psychotic symptoms, including persecutory and paranoid delusions. While the violence of assaults Mr Ornelas committed caused bodily harm to some victims, the harmful effects of his offensive, abusive and threatening conduct on members of the public must also be considered. Should Mr Ornelas engage in further criminal or serious conduct, harms of these kinds may be caused to individuals and the Australian community.
[40] Ibid, TB2, folios 44-47; folios 34-36.
The risk of such harm, of Mr Ornelas engaging in further serious conduct, is mitigated by treatment of his mental health conditions and by his abstinence from use of alcohol and illicit drugs. The contrary holds where Mr Ornelas fails to comply with treatments of his mental health conditions. On 3 May 2021, Dr Willing reported It is likely relapses [in Mr Ornelas’ schizophrenia and psychosis] were related to methamphetamine use and:
Substance use remains a significant factor in increasing Mr Ornelas’ risk of aggression and misadventure.[41]
[41] Ibid, TB1, folio 18.
On 9 September 2022, Dr Chew reported:
[Mr Ornelas’] offending behaviour appears to be linked to his mental health and substance use. It appears that his offending has generally been directly caused by or significantly contributed to by his Substance Use Disorder and Schizophrenia. At the time of offending he was likely experiencing psychotic symptoms which have impacted his judgement and behaviour. This was further complicated by intoxication with substances - alcohol and methamphetamine. For example at the time of his last offending, he had been off his medication for a number of weeks and abuse ICE and alcohol. He had been feeling paranoid thinking that people were having a go at him. In this mental state, coupled with substance abuse, he likely reacted in a poor, aggressive manner to perceived threat. Aggression is often a normal human response to perceived threat however while most people can control this threat response, people with Schizophrenia who are in active psychosis find this more difficult. The addition of disinhibiting substances further complicates this.[42]
[42] Exhibit 1, folio 25.
I note the briefing letter to Dr Chew is not in evidence. The Minister asserts the briefing letter contained factual assertions which are not consistent with the evidence, some of which were put to the doctor in cross-examination. It appears the doctor was given the G-documents, but he was not given other materials which are presently before the Tribunal, including the detailed records of Mr Ornelas’ interactions with NSW Police in Exhibit 3. Even though the briefing letter Dr Chew was given may have contained contested factual assertions, and to that extent it may be considered prejudicial and should be given less weight, those contested facts were put to Dr Chew in cross-examination., I am not persuaded Dr Chew’s evidence, and his oral evidence in particular, should be discounted. On the contrary, Dr Chew’s evidence proceeded logically and with a clear psychiatric rationale drawn from his evident expertise as a psychiatrist who previously examined and produced a forensic psychiatric report in respect of Mr Ornelas on 16 July 2019.[43]
[43] Exhibit 3, TB1, folios 29-31.
With regard to the risk of Mr Ornelas engaging in further serious conduct, Dr Chew reported on relevant risk assessment considerations. Dr Chew explained that dynamic evidence-based tools have some utility, particularly in respect of risk factors and protective factors which may be modifiable, when formulating ongoing management and rehabilitation. The doctor applied the Structure Assessment of Protective Factors for violence risk and reported:
54. I note the relevant risk factors
a. His criminal conviction history
b. Employment issues.
c. Relationship issues with family and ex-partners
d. Major mental disorder – I note that his psychotic disorder is currently well treated and stable.
e. Substance use – I note that he has been alcohol and drug free for an extended period and is motivated to remain so
f. I note that his insight into his offending, mental disorder and substance abuse appears to be good.
55. He also has a number of protective factors that are associated with reducing his risk of offending and violence:
a. Internal items:
i. He is demonstrating empathy.
ii. There is no personality disorder diagnosis
b. Motivational items:
i. He is expressing consistent motivation for treatment.
ii. He is expressing positive attitudes towards authority.
iii. Life goals are present. Her is aiming towards appropriate stable accommodation and treatment.
iv. He is motivated to adhere to intensive professional care from health, drug and alcohol and correctional professionals.
v. He has external control in the form of legal orders.
vi. He is motivated to remain on antipsychotic medication including depot long acting if prescribed
vii. The possibility of deportation from Australia
c. External; items
i. External control is clearly present in the form of legal orders
56. Mr Ornelas appears to offend generally in the context of psychosis, and use of alcohol and drugs.[44]
[44] Exhibit 1, folios 27-28.

At this point it is important to note Mr Ornelas is not currently subject to continuing legal orders or parole. Should he be released back into the community, his conduct will not be subject to supervision or compliance with legal orders.
There are serious questions about the veracity of Mr Ornelas’ expressions of motivation to adhere to intensive professional care from health, drug and alcohol and correctional professionals. During the period of his detention, Mr Ornelas has missed a number of appointments he was scheduled to attend with the drug and alcohol clinic (it appears he has attended only one session) and with counsellors. Mr Ornelas argues his motivation is evident because it was he who made these appointments, which are entirely voluntary. His sworn evidence is the antipsychotic medication, Olanzapine, causes him some difficulties waking up and mentally focussing in the mornings (I note this was not apparent during the hearing – Mr Ornelas informed me he was not experiencing such symptoms at the time). He described mental fogginess which makes it difficult for him to attend counselling and drug and alcohol clinic sessions in the mornings. He also gave evidence he did not receive advance notification of some of these sessions and then had to reschedule them.
The extent to which Mr Ornelas was truthful and fully frank in his evidence is difficult to assess. As I have said, he was extensively cross-examined over several hours. Mr Ornelas changed his account of abstinence from alcohol and illicit while in detention when he was confronted with contrary evidence prior to the hearing – he now admits to drinking alcohol and puffing ice on one occasion early in the period of his detention.[45] Clearly enough, this raises serious doubts about the reliability of his evidence and the weight it should be given.
[45] Exhibit 4.
I note Dr Berry’s findings in respect of Mr Ornelas’ reduced cognitive functioning. This may explain the evident difficulty Mr Ornelas experienced recalling events and placing them in time when giving his evidence. While caution is required when dealing with his uncorroborated evidence, I am not persuaded his evidence is so unreliable it should be discounted entirely. It appears to me Mr Ornelas honestly admitted and has real insight into his past offences and serious conduct.
Even if his evidence of one brief episode using alcohol and ice in immigration detention is accepted as true (and I note this was disclosed by Mr Ornelas voluntarily to a support worker), his level of his actual engagement with support services while in detention is below what one might expect from a person who is highly motivated to obtain help and support in order to address their substance use disorder.
Mr Tanner gave evidence of the support available to Mr Ornelas through Neami National Way2Home. I accept this may assist Mr Ornelas to obtain suitable accommodation and structure in his life should he be released into the community. I also accept Mr Tanner and Mr Ornelas may have discussed and would be capable of agreeing upon a plan to intervene should Mr Ornelas relapse. With respect to Mr Tanner, the difficulty accepting such a plan might mitigate the risk of Mr Ornelas engaging again in serious conduct arises from Mr Ornelas’ past conduct, in which he committed criminal offences and engaged in serious conduct despite Mr Tanner’s involvement and support.
The risk he may relapse into use of illicit drugs and alcohol arises in the presence of triggers for such behaviour in the past. These include boredom, past life patterns or habits, failure to engage with drug and alcohol services, psychological triggers (such as anxiety or loneliness) and social exposure, when reconnecting with previous friends who use alcohol and illicit drugs. Relapse into psychosis is also a major risk factor, whether antecedent or consequent to illicit drug or alcohol use, should Mr Ornelas fail to take prescribed antipsychotic medication.
Nevertheless, it is likely, as Mr Ornelas asserts, cancellation of his Visa and the very real prospect of deportation is a new and compelling motivational factor for Mr Ornelas to change his past behaviour.
Mr Ornelas’ strong desire to reconnect with his daughter and granddaughter is also a strong motivational factor for him to abstain from substance use and to comply with treatment necessary to stabilise and manage his schizophrenia. I note Dr Berry reported Mr Ornelas has been driven by a desire for belonging since a young age,[46] and a sense of being misunderstood and the loneliness of exclusion have contributed to his substance use.
[46] Exhibit 2, TB2, folio 93.
I accept Dr Chew’s assessment and find the level of risk may be mitigated by treatment, as follows:
a.Treatment of Schizophrenia
i. I recommend ongoing psychotropic treatment with olanzapine 10 mg nocte. This is available as a long acting monthly injection which can help compliance. Mr Ornelas has expressed a willingness to me today to take this form of medication.
ii. Psychological therapy
iii. He requires psychiatric case management with regular review by psychiatrist and mental health clinician.
b.Treatment of Substance Use Disorder
i. Specific 1:1 psychological therapy such as involving CBT and Motivational therapy
ii. Urine drug screening – Mr Ornelas has indicated to me today that he would consent to this
iii. Consideration of specific anti-alcohol medication such as disulfiram, acamprosate or naltrexone. He has indicated to me that he is willing to trial these medications.[47]
[47] Exhibit 1, folios 28-29.
On balance, I am satisfied it is likely Mr Ornelas could relapse into psychosis, and he might engage in alcohol and illicit drug use and further serious conduct, if he fails to adhere to recommended treatments for his mental health conditions and he does not engage positively and consistently with drug and alcohol support services.
Consequently, should Mr Ornelas fail in any of these ways, a real risk of harm to the Australian community is likely to arise.
While the tolerance of risk becomes lower as the seriousness of potential harm increases, a higher level of tolerance may be afforded where the non-citizen has spent most of their life in Australia. This is such a case. Mr Ornelas has spent most of his life in Australia, having spent little more than 2 years outside Australia since arriving when he was 3 years old.
Even though Mr Ornelas is not a citizen, he gave evidence which I accept that linguistically, culturally and socially, and even in terms of his (albeit deceased or estranged) immediate family, for almost all his life, he considers himself to be Australian and he identifies Australia as his home.
Considering these matters, I am satisfied the seriousness of his previous conduct and the seriousness of the potential harm should he engage in further criminal or other serious conduct of concern is not so high it cannot be tolerated in his particular circumstances.
For this reason, the risk Mr Ornelas might engage in further serious conduct and potentially harm individuals in the Australian community, as he has done before, does not weigh heavily for or against revoking the decision to cancel his visa.
Nevertheless, the over-arching need to protect the Australian community from harm weighs against revoking the decision to cancel his Visa.
Family violence
There is unequivocal evidence Mr Ornelas has engaged in conduct which amounts to family violence as defined in paragraph 4(1) of the Direction. He has two domestic violence assault convictions and there are records of other violent or abusive conduct toward female family members (his mother for example in 1999) and female partners.
The seriousness of Mr Ornelas’ family violence conduct is to be assessed in consideration of the factors set out in paragraph 8.2(3) of the Direction, including the frequency and cumulative effect of the conduct and any trend of increasing seriousness, as well as any offences committed after formal warnings that may have been given to Mr Ornelas and rehabilitation he may have achieved since last offending.
On 10 December 2010, Mr Ornelas violently assaulted his then partner in what can best be described as a deranged drunken rage and caused her actual bodily harm for which he was charged and convicted. The details of this incident appear in the NSW Police Facts Sheet placed before the Court.[48] As can be seen, the violence Mr Ornelas perpetrated on his partner, punching her in the face three or four times, violently shaking her and then forcibly kissing her, was accompanied by protestations of love. Mr Ornelas was likely intoxicated and possibly psychotic at the time. In sentencing, Magistrate Townsden observed the offence was a serious matter … not at the lower end of the scale of matters involving violence.[49] I accept this assessment. Mr Ornelas’ violent conduct in this offence is viewed very seriously.
[48] Exhibit 2, TB2, folios 113-116.
[49] G10, folio 52.
Mr Ornelas expressed remorse and sorrow for this conduct which I accept is genuine. He expressed some insight into the abhorrent nature of his behaviour and the reasons for it, as well as empathy for the hurt experienced by the victim.
On 26 February 2017, Mr Ornelas committed a further offence involving family violence against his then female partner. The factual circumstances set out in the NSW Police Facts sheet were not seriously contested and can be accepted.[50] Mr Ornelas grabbed the victim by her clothing and pushed her against a sandstone wall, causing her head to impact with the wall. This act of violence caused the victim pain but no other apparent injury. In passing sentence, Magistrate Freund observed was in the low-to-midrange objective seriousness.[51]
[50] Exhibit 2, TB2, folios 59-61
[51] G9, folio 50.
Once again, Mr Ornelas expressed regret, remorse and sorrow for his violent conduct against his former partner which I accept is genuine. He expressed insight into the experience of the victim of his assault and I am satisfied this demonstrates some empathy on his part.
On Mr Ornelas’ sworn evidence and elements of the NSW Police Facts Sheets, I am satisfied each of these offences occurred when Mr Ornelas was affected by illicit drugs and/or alcohol and he was likely not taking antipsychotic medications. In each case, his mental health and his drug and alcohol history, as well as his guilty pleas, were mitigating factors considered in sentencing.
As with other criminal and serious conduct Mr Ornelas has engaged in, his commission of family violence is conditioned to a large extent by psychotic symptoms as well as his use of illicit drugs and alcohol.
In his evidence, Mr Ornelas expressed insight into the causal nexus between failing to take antipsychotic medications, using illicit drugs and alcohol and his engagement in serious conduct, including the commission of crimes of family violence. It is not possible to be certain his professed insights are truly held and there are reasons to suspect they may be no more than shallow expressions of convenience (Mr Ornelas has made similar statements in the past, only to relapse and reoffend again).
This notwithstanding, Dr Chew and Mr Tanner gave evidence of their assessment of Mr Ornelas’ insights and his expressions of remorse, which they considered to be genuine. It is on their evidence, I accept Mr Ornelas has a reasonable scaffold of understanding that will assist him to engage more meaningfully and consistently in rehabilitation and managing behavioural reform. Should he do so, he has a real chance of minimising the occurrence and impact of any relapse; should he not, he will not only squib the opportunity to escape the habitual patterns of his past offending, but he will also forfeit his Visa and his continuing presence in Australia. The latter may exert a powerful and compelling influence on the choices Mr Ornelas must make, as he asserts.
On the one hand, Mr Ornelas’ family violence conduct in the past weighs against revoking the decision to cancel his Visa. On the other hand, his genuine remorse and his insight into his previous offences and conduct involving family violence mitigate against the likelihood he will engage in further similar conduct.
On balance, I am satisfied this consideration weighs against revoking the decision to cancel Mr Ornelas’ Visa.
Best interests of minor children
This consideration arises in the near absence of relevant evidence.
Mr Ornelas maintains DS, who is now an adult, has herself had at least one child. Mr Ornelas gave sworn evidence of efforts he made some years ago to find and make contact with DS after a long period of estrangement, following the unfortunate break down of his relationship with her mother and the onset of his mental illness. He explained he obtained assistance from a support agency and located DS on Facebook. In those Facebook records he discovered he had a granddaughter. DS rebuffed contact, however, and blocked his access to her Facebook records. There matters have rested without Mr Ornelas making further efforts to contact DS or his granddaughter.
I accept Mr Ornelas genuinely aspires to re-establish meaningful contact with his daughter and her family.
There is no evidence from the daughter or from any other family member, such as Mr Ornelas’ brother and sister (both of whom reside in Australia).
With regard to the interests of Mr Ornelas’ granddaughter (and perhaps other grand-children of his should there be any), it is difficult to proceed far without evidence.
By Mr Ornelas’ own account, he was not listed as father to his daughter on her birth certificate, and this was a factor in his failure to obtain access to his daughter when she was a child. In these circumstances, his assertion of grand-fatherhood in respect of a child he knows almost nothing about and whom he has not seen or met is tenuous at best.
The absence of contact between Mr Ornelas and his daughter and grand-child reinforce this assessment. One again by his own account, his daughter rebuffed Mr Ornelas’ attempt to make contact. His prior conduct bears heavily upon this estrangement with his daughter. There is nothing to suggest the estrangement will be affected by any change in Mr Ornelas’ visa status and his presence in or removal from Australia.
These considerations might suggest the best interests of the grand-daughter are unlikely to be affected by cancellation of Mr Ornelas’ Visa. Some caution is necessary, however. The prospect for any reproachment between Mr Ornelas and his daughter, and hence his grand-daughter, albeit presently remote, may well be lowered further should he be removed from Australia. In the past, Mr Ornelas relied upon a community support agency to assist him to locate his daughter. Whether he would be able to obtain similar support in Portugal is unknown and, in that event, the language barrier Mr Ornelas is likely to experience would render it more difficult.
In consideration of Mr Ornelas’ past conduct and behaviour, it cannot be assumed the best interests of the grand-daughter include a potential relationship with her erstwhile grand-father at some point in the future.
On the available evidence, this factor does not weigh for or against revocation of the decision to cancel Mr Ornelas’ Visa.
Expectations of the Australian community
The Government’s statement of Australian community expectations in paragraph 8.4 of the Direction is adverse to any visa applicant who has engaged in serious conduct, giving rise to character concerns in breach of those expectations.[52]
[52] FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FBYR’), per Charlesworth J at [75] and Stewart at [89].
The general expectation is that non-citizens obey Australian laws while in Australia and:
Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This notwithstanding, subparagraphs 8.4(1) and (2) should not be construed as directing the decision a decision-maker must make under s 501CA(4)(b)(ii) in any particular case. The expectations expressed are to be considered on the facts of each case and weighed up against other relevant considerations (noting that primary considerations generally are to be given more weight than other considerations) when deciding if it is appropriate to exercise the discretion to revoke the visa cancellation decision in all the circumstances. These provisions of the Direction should not be construed in a manner that is inimical to the exercise of the discretion conferred upon the decision-maker.[53]
[53] Ibid, per Charlesworth J at [73] and Stewart J at [90]-[92].
As Mr Ornelas has engaged in serious conduct, including family violence and serious crimes against women, as well as criminal conduct that is viewed very seriously, the expectation of the Australian community is deemed, as a norm, to be unfavourable to Mr Ornelas retaining a visa. Assessment of the risk he may engage in further such conduct should he relapse into psychosis or further use of illicit drugs or alcohol leads to a similarly unfavourable assessment.
I am mindful of what Stewart J said in FBYR’s case about the evaluation of appropriateness in the particular circumstances of the visa applicant and the attribution of weight to an adverse character assessment, particularly at [102]:
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
In consideration of the weight to be given to the adverse finding in respect of Mr Ornelas’ character assessment, two important considerations arise in the evaluation of what is appropriate in all the circumstances.
Firstly, the contributory nexus between Mr Ornelas’ offending conduct and his chronic schizophrenia and substance use disorder is not immutable or fixed. Rather, it is capable of modification with treatment.
Secondly, Mr Ornelas has spent most of his life in Australia from the age of 3. But for the 2 years or so thereafter, when he was outside Australia as a child, he has lived his life within the Australian community, as if he was an Australian (albeit a non-citizen) for 43 of his 49 years. While the nature and extent of his contribution to Australia was greater when he was working than it has been since 2002, that contribution must be given weight.
When these features of Mr Ornelas’ particular circumstances are viewed through the prism of community expectations, what is appropriate in all the particular circumstances is a matter about which reasonable minds may differ. On the one hand, the serious conduct Mr Ornelas engaged in which underlies the adverse assessment is such that it would be appropriate for his Visa to remain cancelled. On the other hand, the length of Mr Ornelas residence in Australia and the circumstances of his mental health conditions, including his prospects of rehabilitation and behavioural reform, are circumstances which may render it inappropriate to remove him from Australia.
On balance, the weight to be given to the adverse character assessment is not decisive. Viewing the adverse assessment through the lens of community expectations expressed in the Direction and considering what is appropriate in all the circumstances, I am satisfied this weighs against revoking the decision to cancel Mr Ornelas’ Visa, but not heavily.
International non-refoulement obligations

This consideration is not relevant as no applicable international refoulement obligations arise in this case.
For the avoidance of doubt, the evidence does not establish Mr Ornelas would be at risk of any particular harm should he be returned to Portugal. He has not sought and he is not owed protection by Australia.
Extent of impediments if removed
It is not controversial Mr Ornelas will face some impediments if he is returned to Portugal. The matters set out in subparagraph 9.4.(1) must be considered:
Decision-makers must consider 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 substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
Mr Ornelas is 49 years old. He suffers from chronic schizophrenia and substance use disorder. Both his mental illnesses require appropriate treatment. Mr Ornelas’ schizophrenia requires ongoing treatment with antipsychotic medication and psychiatric management. Mr Ornelas’ substance use disorder also requires regular treatment involving one on one psychological therapy involving cognitive behaviour therapy and motivation therapy, as well as urine testing and perhaps use of specific anti-alcohol pharmacological drugs. It is likely Mr Ornelas will require these kinds of treatment for the rest of his life. Lapse in treatment is likely to result in symptomatic relapse and resumption of the destructive self-reinforcing pattern of psychosis, substance use, behavioural dysregulation and disinhibition, and offending conduct.
In Australia, Mr Ornelas has ready access to the medical and psychological treatments he requires and to the support services he relies upon. He is familiar with the processes involved in obtaining treatment and using relevant support services. Should he be removed to Portugal, he is likely to immediately encounter difficulties seamlessly obtaining treatment and accessing relevant support services. This is not because health services and social supports in Portugal are inferior to those in Australia (the evidence suggests there is broad equivalence), it is because he does not have knowledge of health, mental health and support services in Portugal. Even if he gained such knowledge, he is likely to face difficulties of a practical nature locating, accessing and engaging with treatment providers and relevant support services in a new location with which he is not familiar.
That said, I accept Mr Ornelas is likely to be exposed to circumstances in Australia and in Portugal, should he be removed there, which may trigger past patterns of behaviour involving psychotic relapse and substance use. In his circumstances, familiarity and past associations may trigger relapse should he remain in Australia. This risk is ameliorated to an extent by Mr Ornelas’ motivation to avoid deportation and by his ongoing connection with health and support services, including Mr Tanner. Should he be removed to Portugal, however, the risk of relapse in the circumstances he would then face would not be ameliorated but may be exacerbated.
While there is no clear evidence about the availability of illicit drugs in Portugal, Portugal has decriminalised drug use. Considering the submissions of the parties, it is difficult to know what to make of this when considering the extent of impediments is likely to face if he is removed from Australia. On the one hand, for a person such as Mr Ornelas with a substance use disorder, the removal of criminal penalties for drug use may amount to removal of a disincentive to use drugs and this may increase the risk of relapse. On the other hand, should that occur, rather than facing criminal penalties he might be required to engage in rehabilitative treatment which may be of therapeutic benefit to him. Speculation about such matters is not helpful.
On Dr Chew’s evidence, removing Mr Ornelas to Portugal would be very detrimental for his psychiatric conditions.[54] Even if there is broad equivalence in the medical, psychiatric and allied health services publicly available to citizens in Australia and Portugal, and on Dr Chew’s evidence that is a matter of some doubt, Mr Ornelas is likely to experience greater difficulty accessing services in Portugal than in Australia. He is known to and he has a recorded medical history within the public health system in Australia. In Portugal, absent such records, he would be starting afresh.[55]
[54] Exhibit 1, folio 26.
[55] Registration requirements are set out in Exhibit 3, folios 82-100.
I accept Mr Ornelas has distant relatives in Portugal, but the evidence does not establish he is in contact with these people. There is no evidence Mr Ornelas knows or has contact with anyone in Portugal or that he is likely to obtain support or assistance from his distant relatives or anyone else when establishing himself in Portugal should that be required.
Having regard to relevant country information in Exhibit 3, it can be accepted Portugal has well-developed public health, mental health and social security systems Mr Ornelas may be able to access as a resident citizen in Portugal. In order to access a social inclusion benefit or any other support payment or benefit for which he may be eligible should he be removed to Portugal, necessarily, Mr Ornelas will be required to apply and, on assessment, to meet qualifying criteria.[56] Whether or not he might satisfy the essential qualification criteria for grant of a Portuguese support payment or benefit, such as a social inclusion benefit, is not for me to decide. All that can presently be said about this is the assessment process might take some time.
[56] Exhibit 3, folios 92-100 and 112-116, for example.
Much was said during the hearing about the operation of the residence requirement, and the habitual residence requirement in particular, in applicable Portuguese social security legislation within the European Union (EU). Habitual residence is an essential precondition for key social security payments and benefits in Portugal, including the social inclusion payment.[57] The Minister relies on Swaddling v Adjudication Officer (Swaddling)[58] when asserting there is no requirement for a person to spend an appreciable period within Portugal in order to prove habitual residence.
[57] Ibid, folio 121.
[58] [1999] ECR I-1075.
In Swaddling’s case, the habitual residence question arose in the context of a claim for income support under English law within applicable EU Treaty and related Regulations between member states. Mr Swaddling was a United Kingdom (UK) citizen who lived and worked in the UK but later obtained employment in France. During the period of his employment in France he continued to pay UK National Insurance contributions. He lost his employment in France and returned to live in the UK with his brother, whereupon he applied for Income Support. His application was denied on the ground he did not satisfy the habitual residence test as he had not been resident in the UK for an appreciable period. On appeal, the Court found the applicable Regulation:
… precludes the Member State of origin – in the case of a person who has exercised his right to freedom of movement in order to establish himself in another Member State, in which he has worked and set up his habitual residence, and who has returned to his Member State of origin, where his family lives, in order to seek work – from making entitlement to one of the benefits referred to in Article 10a of Regulation No 1408/71 conditional on habitual residence in that State, which presupposes not only an intention to reside there, but also completion of an appreciable period of residence there.[59]
[59] Ibid, at [33].
Very clearly, Mr Swaddling’s circumstances are substantially different than those Mr Ornelas would face should he be removed to Portugal. In all likelihood, Swaddling’s case would be distinguished for this reason, and it cannot be accepted as reliable authority for the proposition pressed by the Minister. It is unsafe to assume the principle expressed by the Court in Swaddling has a broad application outside the Member States of the EU or that it would apply in Mr Ornelas’ case should he start to reside in Portugal following his forcible removal from Australia. Considering the habitual residence policy set out in the document entitled Your Social Security Rights in Portugal,[60] I would not draw any such conclusion:
The term “habitual resident” means that you must have your “centre of interests” in Portugal. It also refers to permanence: a person who has been in Portugal for some time and intends to stay here for the foreseeable future.
Demonstrating that you are a habitual resident in the country depends on satisfying certain conditions provided fer at the European level (family situation, length and continuity of residency, and work situation, among others)…
[60] Exhibit 3, folio 121.
Consequently, the extent to which Mr Ornelas might obtain income sufficient to establish himself in Portugal, if at all, remains an open, unanswered question. The available medical evidence establishes Mr Ornelas is not fit for employment, whereby he might earn income sufficient to support himself. Even if he was capable of gainful employment, and I make no such finding, he has not worked for many years and his lack of current skills or experience may be a barrier.
These impediments are likely to be significantly increased by language difficulties. Mr Ornelas gave evidence he has very limited Portuguese language skills. I accept his knowledge of and proficiency in Portuguese may well have declined since childhood. I note references in the materials to Mr Ornelas translating for his parents when he was a child in the family home (he explained this was primarily related to television, and he relied upon the more advanced language skills of his elder siblings) and to him assisting Portuguese co-workers on building sites when he was a young man (he explained this was because he had good English language skills, not Portuguese). Furthermore, in consideration of the cognitive decline Dr Berry referred to in his neuropsychological assessment report,[61] it is probable the effects of Mr Ornelas’ drug and alcohol use over many years has adversely affected his brain function. If this is correct, his Portuguese language capability may well have been adversely affected and his learning capacity reduced.
[61] Exhibit 2, TB2, folio 93.
I am satisfied the extent of impediments Mr Ornelas is likely to encounter should he be removed to Portugal are substantial. Removal is likely to have an adverse effect on his chronic mental health conditions, both in terms of direct impact and indirectly should there be a lapse in the continuity of mental health treatment, and there are unanswered questions about means of support which may be available to him.
These considerations weigh heavily in favour of revoking the decision to cancel his Visa.
Impact on victims
There is no evidence before the Tribunal from victims of Mr Ornelas’ past criminal offending or other serious conduct he has engaged in. Importantly, there is no probative or compelling evidence of the impact a decision under s 501CA(4)(b)(ii), one way or the other, might have on members of the Australian community.
Insofar as the Minister asserts consideration must be given to the impact of Mr Ornelas’ serious conduct on victims, including the victims of his crimes and people in public places he verbally accosted, abused, threatened or offended, it is appropriate to make two observations.
Firstly, the relevant consideration under subparagraph 9.3(1) of the Direction is the impact of the decision under s 501CA on members of the Australian community, including victims of the non-citizen’s criminal behaviour. Properly understood, the focus is squarely placed on the visa decision on members of the Australian community, including but not limited to victims of the non-citizen’s criminal behaviour and their families.
Secondly, the consideration is subject to the availability of relevant information and the non-citizen being afforded procedural fairness. Impact cannot be assumed or assessed speculatively without evidence. Relevant information is required. It is no more appropriate to speculate about the possible impact upon victims of a decision to cancel Mr Ornelas’ Visa than it is to make assumptions about the impact such a decision might have on members of the Australian community. Baldly asserting Mr Ornelas’ victims would rather see him removed from Australia is no more appropriate or persuasive than asserting his friends would rather see him remain in Australia. Without evidence, there is no basis on which the Tribunal could make any such finding.
Absent evidence, this consideration can go no further. It does not weigh for or against revocation of the decision to cancel Mr Ornelas’ Visa.
Links to the Australian community
It is necessary to consider the strength, nature and duration of Mr Ornelas’ ties to Australia under subparagraph 9.4.1, and any impact on Australian business interests under subparagraph 9.4.2.
Strength, nature and duration of ties to Australia
Subparagraph 9.4.1 is in the following terms:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Ornelas is not in contact with his family members in Australia, including his brother, sister, daughter, grand-daughter and 4 aunts and uncles. It is perhaps for this reason there is no direct evidence from any of these people. His parents are deceased. I accept Mr Ornelas’ remaining immediate family members are Australian citizens.
The Minister accepts, correctly, there would be a negative impact on Mr Ornelas’ immediate family members in Australia should he be removed from Australia. While Mr Ornelas is not presently involved with his immediate family members in Australia, it cannot be assumed this state of affairs would continue should he continue to abstain from substance use and manage, treat and stabilise his mental health conditions, drawing on the support available to him to turn his life around. In those circumstances, it may well be possible for Mr Ornelas to reconnect with his immediate family members and for meaningful familial relationships, including direct personal contact, to re-emerge. On Dr Berry’s report, a desire for belonging has driven Mr Ornelas since he was young.[62] He attempted to re-establish contact with his daughter and granddaughter in 2015 and I accept his desire for rapprochement is genuine. Should the decision to cancel Mr Ornelas’ Visa stand, this potential, albeit presently remote, would be lost. This would have a negative impact on Mr Ornelas’ immediate family members in Australia.
[62] Exhibit 2, TB2, folio 93.
Mr Ornelas has spent most of his life in Australia, having arrived when he was 3 years old in 1976. Apart from Years 5 and 6 (when Mr Ornelas’ family returned to Portugal), he attended schools in Enmore and Penrith. On leaving school in 1988 after completing Year 10, Mr Ornelas qualified and worked as a steel fixer and concreter in the construction industry for 15 years. In his evidence, Mr Ornelas described with pride the contributions he made to significant buildings in the Sydney area. Mr Ornelas experienced mental health issues from 1999 which caused him to cease working in 2002, whereupon he was granted a Disability Support Pension. He has not worked since 2002.
Aside from minor driving offences on 20 July 1993, Mr Ornelas criminal offending commenced with the onset of his mental health conditions in 1999, 23 years after he first arrived in Australia. In that year he offended by causing property damage. In 2002 he first committed stealing and drug offences. On 5 January 2008, in what was probably a psychotic episode, Mr Ornelas first committed an offence resisting police in the execution of duty.[63] He first committed a violent crime on 10 December 2010, 34 years after arriving in Australia.
[63] Exhibit 2, TB3, folio 349.
The nature of Mr Ornelas’ family and social links to people with a right to reside in Australia indefinitely is characterised by remote, transient or dysfunctional relationships affected by psychosis and substance use.
On the available evidence Mr Ornelas does not presently have contact with his immediate family members, but his links to those people persist. The strength of his desire for contact with his daughter and granddaughter despite years of separation is a measure of the strength and importance of this family connection.
His social links appear to be with friends, acquaintances and people he has met on the street. The strength of these social links is difficult to assess with any certainty. There is no evidence from people Mr Ornelas might consider to be friends. Mr Tanner’s evidence demonstrates the difficulty: Mr Tanner suggests Mr Ornelas is trusting and he has welcomed people into his home, but he also confirms Mr Ornelas suffers from social isolation and loneliness which is mitigated by his close relationship with his dog ‘Pepper’.
Notwithstanding the transient nature of Mr Ornelas’ social links and his present estrangement from members of his immediate family, the strength of his familial and social links to Australians (or those entitled to reside here indefinitely) stems from the long duration of his presence in Australia. For many years, Mr Ornelas has lived his life in and around Sydney. Considering all the evidence, including his own account, I am satisfied since childhood, he has interacted and engaged in relationships with Australians and others entitled to reside here, he has worked and made a contribution, he has endured serious mental illness and he has used and been affected by illicit drugs and alcohol, he has engaged in serious and criminal conduct, all the while treating Sydney as his home and Australia as his country, and perceiving himself as Australian.
On balance, these considerations weigh in favour of revoking the decision to cancel his Visa.
Impact on Australian business interests
This consideration is not presently relevant in the circumstances of Mr Ornelas’ case.
Conclusion
This is a difficult and borderline case.
Considerations relating to the protection of the Australian community weigh against revoking the decision to cancel Mr Ornelas’ Visa. The seriousness of Mr Ornelas’ conduct to date is increased by the cumulative effect of his repeat offences and the acts of random violence, violence against women and family violence he has perpetrated. Conduct of this kind is to be viewed very seriously, albeit that individual offences and acts do not exceed the midrange of objective seriousness. The trend of increasing seriousness adds weight to this consideration.

I accept Mr Ornelas committed crimes and engaged in other serious conduct while in a psychotic and/or intoxicated state, but this does not reduce his moral or legal culpability and it does not reduce the seriousness of his conduct.
I am satisfied there is a real risk Mr Ornelas is likely to reoffend should he fail to maintain compliance with treatment for his Schizophrenia or should he fail to undertake rehabilitative treatment and counselling for his Substance Use Disorder and relapse into use of alcohol or illicit drugs. Despite Mr Ornelas’ claims of reformation and his avowed intention to abstain from using alcohol and drugs in the future, his present assertions have not yet been tested in the community where he will inevitably encounter triggers and temptations which, unless he staunchly resists them, may lead him to relapse. He does not have a good record in this regard. In the past when he has made similar promises, he has subsequently failed and relapsed into old patterns of behaviour. Words may come easily, especially when convenient, but in order for Mr Ornelas to avoid relapse he will require treatment, insight and support. Whether he has the strength of will and resolute commitment to abstain is moot. If one accepts he has resisted using alcohol and illicit drugs while in detention (with only one lapse), this demonstrates some level of commitment. His low level of engagement with drug and alcohol services and counselling is consistent with a lack of commitment. So, the risk he may fail, relapse and offend again is real.
Certainly, these considerations weigh against revoking the decision to cancel his Visa.
Against this there is a question of tolerance: how much tolerance of risk should be afforded? As Mr Ornelas has spent most of his life from a young age in Australia, a higher level of risk may be tolerated.
I accept Dr Chew’s evidence Mr Ornelas has a good prognosis and the risk of him re-offending will be much reduced if he persists with treatment, rehabilitation and abstinence from alcohol and illicit drugs. [64] Mr Ornelas has demonstrated insight into his mental health conditions and his past offending conduct, and I accept he has strong motivations to change his behaviour. His desire to reconnect with his daughter and granddaughter and the prospect of being removed from Australia are powerful motivating factors for him.
[64] Exhibit 1, folio 26.
Weighing these considerations, I am satisfied the threshold of tolerance is not surpassed. While there is a real risk of harm to the Australian community should Mr Ornelas relapse and offend again, the risk is not so great it cannot be tolerated in the particular circumstances.
While the risk may be tolerated, this does not entirely offset the weight given to the nature and seriousness of Mr Ornelas’ conduct. It is for this reason I am satisfied considerations relating to the protection of the Australian community weigh against revoking the decision to cancel Mr Ornelas’ Visa, albeit not decisively.
I have found considerations relating to family violence weigh against revocation of the delegate’s decision. While Mr Ornelas committed acts of family violence as defined in the Direction which are viewed very seriously, the weight given to these considerations is lightened somewhat by his remorse and his insight into his conduct and the circumstances in which it occurred.
Without evidence of the best interests of Mr Ornelas’ granddaughter, considerations relating to the best interests of minor children can be given no weight, one way or the other.
The expectations of the Australian community weigh against revoking the decision to cancel. While the evidence supports an adverse character assessment in respect of Mr Ornelas’ past offending and other serious conduct, and this weighs against revocation, there are features of his case that raise questions about the appropriateness of removing him from Australia in all the circumstances. There are factual circumstances which weigh against revocation. Mr Ornelas has spent most of his life since early childhood in Australia. He suffers from serious and chronic mental health conditions which affect his behaviour. His mental health conditions and his past heavily use of alcohol and illicit drugs and are able to be treated and managed. While there is a real risk he may relapse, should Mr Ornelas comply with ongoing treatment and rehabilitation it is likely to produce significant positive change in his behaviour and his conduct of concern.
When all these factors are viewed through the lens of community expectations about what is appropriate in all the circumstances, the weight of the adverse character assessment is partly offset. It is for this reason this consideration weighs against revocation, but not decisively or heavily.
There are no international refoulement obligations to consider in this case.
Considerations relating to the extent of impediments Mr Ornelas will face if he is removed to Portugal, which are substantial, weigh heavily in the balance. Removal to Portugal is likely to have a substantial adverse effect on his mental health conditions. He will face language and other practical impediments. These include uncertainty and likely delay accessing and maintaining continuity of treatment for his chronic mental health conditions, and obtaining financial support sufficient to re-establish himself in Portugal in circumstances where he has no capacity to work and earn an income.
Should he be removed to Portugal after living most of his life in Sydney, Mr Ornelas will face significant cultural barriers. His knowledge of Portuguese culture is derived from brief childhood experience more than 30 years ago. For many years, he has identified himself culturally, linguistically and socially as Australian, and he considers Australia to be his home. Considering Dr Berry’s evidence in respect of cognitive decline, Mr Ornelas may experience learning, memory and other cognitive difficulties learning the Portuguese language, adapting to Portuguese culture and negotiating access to services and supports on which he relies. These considerations weigh heavily in favour of revoking the decision to cancel his Visa.
Absent evidence of the impact on victims of Mr Ornelas’ criminal or other serious conduct, related considerations are speculative and carry no weight
Mr Ornelas’ links to the Australian community are, in effect, lifelong. His immediate family members are Australian citizens residing in Sydney. Even though he is not presently in contact with these people, I accept he genuinely aspires to re-establish connections with his immediate family members, and this underscores the importance of familial bonds, albeit presently remote, within Mr Ornelas’ deep desire for belonging which, on Dr Berry’s evidence, has been a significant factor in his life from a young age. While Mr Ornelas may not have deep social links in the form of enduring personal relationships, employment or business interests or community involvements, he is nevertheless culturally tied to Australia. After living in Australia for 44 years, identifying himself as Australian, it can be understood he views Australia as home. Mr Ornelas’ links to Australia weigh in favour of revoking the decision to cancel his Visa.
On balance, weighing the primary and other relevant considerations in accordance with the Objectives, the Principles and the guidance given in subparagraph 7 in the Direction, the balance tips in favour of revocation.
The primary considerations relating to protection of the Australian community, family violence and community expectations weigh against revocation. Even though, generally, primary considerations should be given greater weight than other considerations, in this case other considerations relating to the impediments Mr Ornelas will face if he is removed from Australia and his links to the Australian community carry marginally more weight. In my assessment of the evidence, those other considerations must be given substantial weight in the particular circumstances.
That being so, even though Mr Ornelas fails the character test, I am satisfied there is another reason to revoke the decision to cancel his Visa for the purposes of s 501CA(4)(b)(ii) of the Migration Act.
Decision
The 11 July 2022 decision of the Minister’s delegate not to revoke the mandatory cancellation of Mr Ornelas’ Class BF transitory (permanent) visa is set aside. In substitution, the Tribunal revokes the cancellation of Mr Ornelas’ Class BF transitory (permanent) visa.
………………………….
Associate
Dated:   30 September 2022
Date of Hearing:   19 and 20 September 2022
Date final submissions received:      16 September 2022
Counsel for Applicant:   Ms Hannah Ryan, Wentworth Eleven Chambers
Solicitor for Applicant:  Ms Kavidhra Anandasivam, Legal Aid NSW
Counsel for Respondent:                   Mr Karwan Eskerie, Sparke Helmore
Solicitor for Respondent:                   Mr Flynn Rush, Sparke Helmore

[2022] AATA 3182

30 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness