Paenga and Minister for Immigration and Citizenship

[2010] AATA 814

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 814

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3254

GENERAL ADMINISTRATIVE DIVISION		)
Re		LARRISSA PAENGA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal The Hon. B Tamberlin QC, Deputy President

Date 22 October 2010

PlaceSydney

Decision The decision under review is set aside and remitted to the Respondent with the direction that the discretion in section 501(2) of the Migration Act 1958 to cancel the Applicant’s Class TY Subclass 444 Special Category Temporary Visa should not be exercised.

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

The Hon. B Tamberlin QC

Deputy President

CATCHWORDS

IMMIGRATION- Cancellation of visa – character test – Direction No.41 – primary considerations - substantial criminal record – significant mental health issues -whether discretion should be exercised – decision set aside

LEGISLATION

Mental Health Act 2007: section 51

Migration Act 1958 (Cth): sections 499, 501.

OTHER INSTRUMENTS

Direction No. 41 – Visa refusal and cancellation under s501

REASONS FOR DECISION

22 October 2010   The Hon. B Tamberlin QC, Deputy President

1. Ms Paenga, the Applicant, seeks review of a discretionary decision of a Ministerial Delegate dated 29 July 2010 to cancel her Temporary Visa under ss 501(2) of the Migration Act (1958) (the Act), on the ground that she did not pass the character test because she has a substantial criminal record in Australia and New Zealand, and has been sentenced to a term of imprisonment of 12 months or more.

2.      The Applicant, who is now 24, has been convicted in Australia of a number of offences and, before arriving in Australia in April 2004, she had a significant criminal history in New Zealand. Such crimes included those involving a degree of violence. Some of these offences attracted sentences of 12 months or more.

3.      On 19 August 2009, the Applicant was convicted of four counts of shoplifting in respect of goods with a value of less than $2,000 and was sentenced to 12 months imprisonment.

4.      In summary, after her arrival in Australia, the Applicant’s was convicted of several offences, including numerous driving offences, two counts of larceny, taking and driving conveyances without consent of owner, breaking and entering buildings (steal) and shoplifting for which she received bonds as well as terms of imprisonment.  When the Applicant committed the second larceny offences in Australia, her bond for the prior larceny offence was revoked and she was required to serve a 12 month sentence by way of full-time imprisonment.  It is noteworthy, however, that she does not have a history of convictions for violent offences in Australia.

5.      Prior to her arrival in Australia in April 2004, at the age of 17 and a half, the Applicant had a more serious history of offending, including some offences of violence.  The most serious of those was a conviction on 18 December 2002 in respect of aggravated robbery, attempted aggravated robbery and unlawfully taking a motor vehicle.  According to sentencing remarks, on two separate occasions the Applicant had attempted theft of motor vehicles from their owners entering by the passenger’s side door of her female victims’ vehicles and aggressively demanding the car keys.  She threatened one victim with a knife in order to obtain money.  These robbery and assault charges in New Zealand, together with the offences of dishonesty, can be described as “serious”.  In New Zealand she received one 18 month sentence for the robbery offence, which indicates the seriousness of the conduct.

6.      It is to be noted that the Applicant’s offences in Australia do not show a trend of greatly increasing seriousness over recent years, however, her overall record does contain instances of violent offences. It could be said that she does not appear to have been deterred from continued offending by the imposition of penalties including some custodial sentences.  The Applicant has demonstrated a disregard for judicial orders including the breach of a court order, a failure to appear, and escaping from custody.  Her most serious offence in New Zealand occurred on 27 June 2002, more than eight years ago.

Legislative Provisions

7.      Subsection 501(2) gives the Minister a discretion to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the Minister that the person passes the character test.  In this case it is agreed that the Minister’s discretion has been enlivened because the Applicant has a substantial criminal record: see s 501(4) and (7) of the Act.

8.      In considering whether to exercise the discretion, the Minister is bound by Direction No. 41 – Visa refusal and cancellation under s501.  I will not set out that Direction in these reasons.  I have applied that Direction in reaching my conclusion and have set out the relevant considerations later in these reasons.

Applicant’s Evidence

9.      The Applicant gave evidence and was cross-examined.  She was born in September 1986 in New Zealand and has one sister and two brothers.  Her parents separated when she was very young, and it has been many years since she has seen her father.  Her father was always drunk and very violent and regularly physically assaulted her mother.  When she was an infant she was sexually assaulted by a neighbour.  She has been very close to her mother (Ms Penno) who has worked hard to feed, protect and care for her.  The Applicant’s grandparents emigrated to Australia in 1982 and all her relatives to whom she has any significant close relationship are here in Australia.  

10.     Since a very early age, the Applicant has had severe psychological problems including repeated serious attempts at self-harm.  When she was 13, the Applicant was raped and she has had an ongoing history of “hearing voices”.  In order to protect herself from possible imagined attacks, she has on occasions carried a knife and other cutting instruments.  In 2000 she came to Australia with her mother but shortly after she returned to New Zealand, as she was required to give evidence in a case involving sexual assault charges against an assailant in respect of an offence in New Zealand.  She refused to return to Australia and lived with her mother’s fiance’ at the time.  She gave evidence that he received money from Social Security to care for her, but he starved and beat her.  The Applicant ran away and lived on the streets in New Zealand for a few years.  She has had a long history of substance abuse including marijuana and alcohol and on occasions heavier drugs.  She has no relationship with her father.  The evidence is clear that he is a violent, drug taking alcoholic.  In 2004, after greatly missing her family in Australia, the Applicant contacted her mother who arranged for her to come to Australia.

11.     The Applicant gave evidence that she is happy to be with her family in Australia, however, her psychological condition initially deteriorated and she was hearing voices and had serious paranoid thoughts, but this has recently ceased since a change in medication.  She has a lengthy history of psychiatric treatment and she had been homeless for about one year since her arrival in Australia. For a time she survived by stealing and sleeping in parks.  The Applicant has been in and out of psychiatric institutions. She has also been diagnosed with Hepatitis B, suffers from severe back pain and is greatly overweight.  For some time the Applicant had a relationship with a boyfriend. This relationship has subsequently broken up although she was on good terms with his family.  The Applicant indicated that she felt that he was using her. 

12.     The Applicant has been able to hold down some jobs. She is literate but has only a primary level of education.  She does, however, enjoy reading and showed a desire to improve her literacy.

13.     The last time the Applicant offended was when she stole a wig to disguise herself because she thought people involved with the Mafia were trying to kill her.  To some extent her aggression has been because of a deluded feeling of a need to defend herself.

14.     The Applicant has spent a considerable amount of time in Silverwater Women's Correctional Centre and has undergone treatment. She says she has now been prescribed medication with which she can treat her mental illness.  In addition, the Applicant says that she is prepared to undertake any necessary treatment including entering a suitable institution, if necessary. The Applicant indicated that she wants her mother to stop worrying about her because her mother, Ms Penno, has to look after her 27-year-old brother Raymond who is autistic.  The Applicant wants to get better and realises that without proper treatment and medication she will not achieve this.  She says that if she stays in Australia she will live in a residence with her sister Siniva, aged 25, with whom she gets on well.  Her sister does not presently have accommodation but the applicant says that Siniva will be seeking accommodation somewhere near her mother’s home in Bankstown.

Ms Penno’s Evidence

15.     Ms  Penno, the Applicant’s mother, lives in Bankstown and is 47 years of age.  She gave evidence that she came to Australia in September 2000 with her children to join her mother and elder son, who were already in Australia.  Her parents had come to Australia in 1982 and she joined her mother after the death of her father.  Ms Penno has four children, two girls and two boys. 

16.     Ms Penno gave evidence that her early family life with her husband was immersed in violence.  He drank heavily and smoked drugs constantly.  She was the person responsible for caring for the family.  Ms Penno indicated that the Applicant was a disturbed child and that she went from doctor to doctor trying to find her help.  She said that it is not practical for the Applicant to presently live with her as she has to care for her autistic son and she is living with a partner and with her other daughter, Siniva.  It is difficult for Ms Penno to care for the Applicant and her autistic son in the same household, due to their respective conditions it is challenging for them to get along well and they often fight. Siniva gets on well with the Applicant and wants to live and care for her when she is released into the community after appropriate treatment.  The Applicant’s mother is willing to help financially so far as she is able and is prepared to take on additional work to assist in this respect.  The family bonds are very strong as evidenced by the continuing visits to the applicant by Ms Penno and Siniva whilst in detention.

17.     Since the Applicant has been on her current medication, Ms Penno has noticed a big change in her.  Ms Penno indicated that the Applicant has shown warmth and confidence when she and Siniva have visited the detention centre. Ms Penno said that the Applicant needs people around her who love and care for her and that in Australia she has her mother, her sister and the rest of her family.  In particular, the Applicant has a very close relationship with her young niece and nephew.  In New Zealand there is no one to look out for her as her father cannot be trusted because of his alcohol problems and because he is surrounded by a culture of violence and drugs.  Ms Penno wants the Applicant to stay in Australia and be cared for by her family and continue to have the benefit of the the mental health system, which she says has finally helped her daughter.  She says that if her daughter is deported to New Zealand she will be totally lost to her family.

Professional Evidence

18.     Testimony was given by Dr Jonathan Adams, a forensic psychiatrist, who has interviewed the Applicant and her mother, Ms Penno.  Dr Adams considered that the Applicant disclosed a long-standing history of symptoms of mental illness.  He considered that the most likely diagnosis is one of paranoid schizophrenia with a schizoaffective disorder.  He believed that if released from detention, the Applicant would require transfer to a psychiatric hospital, given the ongoing evidence of delusional beliefs and the potential risk to others.  Such a transfer would enable provision to be made for appropriate psychiatric care to improve her mental state, gradual reintegration into the community and enable her to take advantage of her support network of family members so as to enable a staged transfer of care to the mental health team which would eventually oversee her treatment in the community.

19.     Dr Adams was an impressive witness and was cross-examined by the Respondent.  His evidence was not shaken.  He considered that provided appropriate medical treatment and supervision was provided, then the risk to the Australian community of harm or detriment as a consequence of the Applicant’s conduct would be significantly reduced.  He did not say that there was no risk, even with treatment, but concluded that with appropriate mental health care the potential risk of future violence would be considerably less significant.

20.     Dr Adams was of the view that the Applicant’s return to New Zealand was highly undesirable because the potential risk of self-harm was significant. Further, there was a risk of her mental state deteriorating severely.  Dr Adams’ evidence emphasised the great importance of family support and affection in the care and proper treatment of the Applicant.  He referred to her statements of suicidal intentions if forced to leave Australia.

21. Whilst in detention, on 9 August 2010 the Mental Health Review Tribunal of New South Wales, pursuant to s 51 of the Mental Health Act 2007 (the Mental Health Act), made a Community Treatment Order in respect of the Applicant, which provides in detail for her release into the community on the ground that she would benefit from the Order. The Order imposed conditions for the provision of treatment and contact with a case manager or delegate, and the supervision of the taking of her medication. This is a less onerous requirement than that suggested by Dr Adams, who recommended a stage of treatment in a facility in the nature of a psychiatric hospital before release into the community. It is some indication that the Mental Health Review Tribunal considered she could be released so as to function adequately in the community, provided she was regularly supervised in a less restrictive manner than being transferred to a community facility or institution.

22.     In making the Community Treatment Order, however, the Mental Health Review Tribunal did not have the benefit of the expert opinion of Dr Adams.  On the evidence before me, it seems that further consideration needs to be given to the question of whether the appropriate basis of any release into the community of the Applicant should be that proposed by Dr Adams, or alternatively release on the basis of the Community Treatment Order presently in existence, which may not be adequate.  It would be appropriate for this matter to be reconsidered by the Mental Health Review Tribunal at the appropriate time having regard to the views of Dr Adams.

23.     I now turn to the specific matters for consideration in light of the evidence.

Character test

24. It is common ground that the Minister has a discretion in this case to cancel the Visa of the applicant on the basis that he reasonably suspects that she has not passed the character test and is not satisfied that she passes the test, pursuant with the requirements of ss 501(2) of the Act. The conduct in this matter is serious and some of it involves violence.

25.     I have set out above, the summary of the Applicant’s criminal record. Such a record evidences a lengthy history of offences.  However, although lengthy, the list is not at the extreme end of the spectrum of seriousness, particularly in relation to violence.  It is therefore necessary to address the issue of discretion, and in order to do this, to apply the requirements of Direction No. 41 made pursuant to s 499 of the Act.

Primary Considerations

26.     The central consideration in this case is the primary consideration which relates to the necessity for the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence.

27.     It is common ground that, without proper psychiatric treatment, support and supervision, the Applicant may constitute a significant risk to the Australian community.

28.     The Minister has emphasised the lengthy criminal history including a number of occasions on which there has been some violence and crimes concerning property.  There have been a series of relapses from medical treatment and substance abuse, which have contributed to the commission of crimes by the Applicant.  There have been incidents in which harmful devices such as razors, scissors and knives have been in the possession of the Applicant.  There is the severe schizophrenic disorder which leads to the Applicant possessing a  fear of attack and the sense of an urgent necessity to defend herself by violent action.

29.      The Minister submits that there is a real and extreme danger of recidivism to the earlier patterns of anti-social conduct and crime.  There have been serious thefts, threats and threatening conduct, and a general failure to observe basic rules of society and non-compliance with court orders.  In particular, there can be no guarantee that the applicant will not relapse into rejection of the prescribed medicine because of the adverse and severe unpleasant side-effects of treatment.  If this happens, then there will be a reversion to violent conduct and the Australian community will be endangered.  If released into the Australian community, there can be no assurance that the Applicant will be committed to a facility as suggested by Dr Adams or that the Community Treatment Order, as specified by the Mental Health Review Tribunal, will be satisfactory to prevent any danger to the community.

30.     In forming a view on this aspect, I have paid regard to the number and nature of the offences, the period between them, and the time elapsed since the most recent offence together with the sentences imposed and the detailed remarks of the judicial officers.

31.     The Applicant does not have a significant history of violent offences in Australia and she has been here now for six years. Nor, as the delegate pointed out at paragraph 31 of their submission in relation the possible cancellation of the Applicant’s visa, does her conduct show a trend of increasing seriousness over recent years. Without diminishing the seriousness of the offences, it can be said that they are at the lower end of the range, particularly so far as violence is concerned, and these offences are largely related to non-compliance with medical treatment, which, to some extent, resulted from severe adverse side effects. I accept the evidence of the Applicant’s mother without reservation to the effect that there is extremely strong, loving family support here in Australia and that there is none in New Zealand. The evidence indicates that family support is of great significance in the success of treatment. Dr Adams, the Mental Health Review Tribunal, and those presently concerned in the treatment of the Applicant, consider that there are means under the Mental Health Act available to ensure the treatment of the Applicant in an adequate way so as to greatly reduce the unacceptable consequences of the severe mental illness of the Applicant.

32.     I am satisfied on hearing from the Applicant and having regard to the professional medical and family evidence, that the chances of the Applicant reverting to violent conduct when eventually released into the Australian community will be greatly reduced by adequate treatment in the nature of commitment to a facility and/or an appropriate Community Treatment Order so as to make the risk to the Australian community an acceptable one in all the circumstances.  In reaching this conclusion, I have taken account of the fact that both the Applicant and her family are willing to accept the benefit of a facility to assist in her treatment and/or if it is thought fit to submit to supervision under any Order which would treat her problems.  In my assessment, with adequate supervision her substance abuse problems can also be effectively monitored.

33.     So far as the non-compliance issue is concerned, I have given weight to the evidence that there are ways of injecting the medicines on a monthly basis under supervision and that this will greatly reduce non-compliance because of the adverse side effects.

Other primary considerations

34.     The Applicant came to Australia when she was 17 and a half years of age and accordingly the question whether she was a minor is of no significance in this matter

35.     Her misconduct commenced in Australia within a short period of arrival and this goes against her case.

36.     There are no relevant international obligations applicable in this case nor is there any concern about the best interest of any children

General considerations

37.     The question of family ties in this specific case is most important, although not a primary consideration.  The evidence clearly establishes a very close family relationship with the mother, sister and other relatives including her niece and nephew and close ties with her sister-in-law.  I am satisfied there is an extensive, strong, loving and caring network of relatives for her in Australia, of which will assist her effective treatment, and of which she would be deprived if returned to New Zealand where she will face an impersonal, friendless and hostile environment which would not be conducive to her treatment towards a possible recovery.  I have taken into account the fact that there are Mental Health provisions in New Zealand law, which proceed on a similar type to those present in Australia, but I do not think the existence of those provisions alone without any family support is in any way adequate. 

38.     In addition, there would clearly be a serious emotional disruption to her family in Australia if she were to leave.  She is not in a present marital or other relationship with a partner.  She is 24 years of age and age is not a significant consideration.  There may be some practical difficulties in her accessing care in New Zealand.  Her health is clearly extremely poor, having regard to her mental condition, and other physical problems such as her severe back pain, weight and Hepatitis B infection, and she has generally adverse physical health.  She is clearly not in the position to protect herself or look after herself so as to improve her position because of her mental health conditions, and lack of resources.  Her links to New Zealand are non-existent or negative.  Her departure would have an adverse affect on her niece and nephew with whom the evidence indicates she has a very close and loving relationship.  Her formal educational level is low but she is willing to improve and has made efforts to improve her education and increase her capacity to make a contribution in the sense that she is literate and reads a range of different material.  It is common ground that the Applicant has not been formally advised in the past about conduct that brought her within the deportation provisions.  After taking into account all considerations the correct and preferable decision is that the visa should not be cancelled.

Conclusion

39. Having regard to the above considerations, I am satisfied that the correct and preferable decision in this case is that the decision under review is set aside and remitted to the Respondent with the direction that the discretion in section 501(2) of the Migration Act 1958 to cancel the Applicant’s Class TY Subclass 444 Special Category Temporary Visa should not be exercised..

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. B Tamberlin, Deputy President.

Signed: ............[sgd]........................................................................
           Associate B. Dhanasar

Date of Hearing  22 September 2010
Date of Decision  22 October 2010
Counsel for the Applicant         Mr L Karp

Solicitor for the Applicant          Ms A Toliopoulos, Legal Aid Commission of New South Wales

Solicitor for the Respondent     Mr R Bower, Clayton Utz