QGMJ and Minister for Immigration and Border Protection (Migration)

QGMJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1537 (22 September 2017)
Division:GENERAL DIVISION
File Number: 2017/0717
Re:QGMJ
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:22 September 2017
Place:Perth

The decision under review is affirmed.
............................[sgd]............................................
Deputy President Dr Christopher Kendall
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children – expectations of the Australian community – other considerations – non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed including issues relating to mental health condition – decision under review affirmed
LEGISLATION
Migration Act 1958 – s 499(2A), s 501(3A), s 501(6), s 501(7)(c), s 501CA(4)
Direction No 65: Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paras 6.2, 6.3, 7(1), 13(2), 8(1), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.3(1), 14(1)(a),(b),(d) and (e), 14.1, 14.2(1), 14.4, 14.5(1)
CASES
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
22 September 2017
INTRODUCTION

Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of a party to proceedings and allocate a pseudonym to a party if the Tribunal deems it appropriate to do so.
The Tribunal determined that, in this case, it was appropriate to restrict the identification of the Applicant. Accordingly, the Applicant in these proceedings will be referred to by the pseudonym “QGMJ”. The Tribunal has also determined that it should not disclose the names of any of QGMJ’s family members, medical specialists or witnesses.
This matter requires the Tribunal to determine whether it should exercise the discretion in s 501CA (4) of the Migration Act 1958 (Cth) (the “Migration Act”) to revoke an earlier decision to cancel QGMJ’s visa.
At the time of the hearing before this Tribunal QGMJ was aged 29. He is a citizen of Kenya. He arrived in Australia as an unaccompanied minor stowaway in 2004. He was taken into immigration custody and eventually granted a Class XB Subclass 202 Global Special Humanitarian Visa (the “visa”).
QGMJ has been convicted of nine criminal offences since 2006. In 2015, he was charged with and found guilty of serious offences in the Supreme Court of Western Australia: “failed to reasonably ensure that fire/ignition source did/would not cause a fire that could not be controlled” and “aggravated burglary and commit offence in dwelling”. The victims of this crime were his former partner (hereafter referred to as “XY”) and his two minor children. QGMJ was incarcerated for 2 years in Acacia Prison for these offences.
The circumstances surrounding these recent serious offences were summarised by the sentencing judge, Justice Fiannaca of the Supreme Court of Western Australia, as follows:
The offences took place at the home of XY in Fremantle.
The unit in which she lived was owned by the Department of Housing.
You had been in a relationship with XY for about seven years. The relationship ended in June of 2014. There are two children from that relationship ... They were living with XY at the unit.
At 5.50 pm on Friday, 10 July 2015, you went to XY’s home and gained access to the rear of the property. Your car was parked there under a communal carport. You had left it parked there for quite some time and it was not able to be driven. Sometime before 10 July 2015, XY had come home one day to find that the car’s windows had been smashed.
It seems the windows had not been repaired when you went to the carport on the day of the offences. There was a container of fuel stored in the boot of the car, which you took out. You then poured a considerable amount of the petrol into the car through the front window opening on the passenger side of the car. You then used a lighter to ignite the petrol. This caused a fireball which partially engulfed you. The fire took hold. It destroyed the car and caused minor damage to the structure of the carport surrounding the car. The heat from the fire also caused minor smoke damage to the exterior of the building, which was later washed away by rain. The fire also threatened to engulf other vehicles which were parked nearby. It also threatened to spread to XY’s unit. You knew she was in there with your children.
You received some bums to your face and hands from the fire, but the fire had the potential to have more catastrophic consequences. There was a real risk that lives could be lost, or that serious injury could be caused to XY and the children, and maybe others, if the fire had spread. As it happened, the fire brigade attended and the fire was extinguished without having caused any significant damage to the building.
Those facts form the basis of the first charge, the breach of duty while in control of something that could light a fire.
XY, who had been bathing the children had become aware of flickering light outside and went to a window to investigate. She saw you near the car and flames and smoke coming from the car. She ran to the bathroom to get the [children] and took them to her bedroom upstairs, to dress them in order to get out of the house.
Having set the car alight you decided to enter the house, knowing that XY did not want you in the house, and knowing she and the children were in the house. You used your hands and an unknown object to break a window at the side of the house and climbed through the opening into the lounge room.
XY heard you enter and took refuge with the [children] in the bedroom by closing the door.
You made your way through the house, smashing numerous items of property, including the television, glassware and pottery. You also pulled books out of bookcases and pulled down bookshelves. Apart from causing considerable damage, you created significant obstacles for someone who might try to get access to the bedroom or leave the house.
XY, who could hear the sound of things breaking downstairs, called the emergency number on her mobile telephone and started to tell police communications what was going on.
Eventually you made your way to the upstairs bedroom where you forced entry. XY and the children were cowering in the bedroom. You grabbed the mobile phone from her and smashed it on the floor, terminating her call to the police. You demanded to know where your things from school were. XY said she did not know what you were talking about. Your [children] were clinging to their mother, clearly terrified.
At one stage XY had backed away from you onto a balcony and she could see neighbours gathered outside. One of those neighbours has said in her statement that XY looked terrified.
You forcefully grabbed hold of your youngest [child] by both arms and lifted her off the ground. Despite XY’s pleas, screaming to you to give the [child] back, and despite the child screaming to [the child’s] mother, you took your [child] downstairs and tried to leave.
However, neighbours had gathered outside and one had kicked the front door in, fearing for the safety of the occupants. One of the neighbours pleaded with you to hand over your [child]. Eventually you did so.
There are statements from two of the neighbours. It is clear from their statements that your youngest [child] was traumatised by the events. As you carried her out of the unit she was yelling for … mum. The neighbour who took [the child] says that [the child] was screaming and looked terrified. The neighbour says: ‘The little [child] was in such a state of hysteria, I could not calm [the child].
Another neighbour had gone into the house and called to XY to get out. She says in her statement that there was a big bookshelf blocking the door to XY’s bedroom. However, XY and your [child] were able eventually to make their way down the stairs, negotiating the obstacles that you had created, and were able to get out of the unit.
Your actions in breaking into the unit and destroying and damaging property while you were in there form the basis of the aggravated burglary and criminal damage charges.
You left the scene, but were arrested by police while you were still close by a short time later. You were taken to hospital for treatment and later to the Fremantle Police Station.
Just after midnight on 11 July 2015, you took part in an interview with police, which was recorded on video. I have watched that video.
You admitted the offences. You said you went to XY’s place for your school paperwork. You later clarified that there were other documents, including family letters and photos that you wanted to retrieve. In her statement, XY says that when you forced your way into her bedroom, you demanded to know where your things from school were. I am prepared to accept, therefore, that at least one of your reasons for going into the unit was to retrieve documents connected with your education.
You said in your interview that you could hear XY and the children inside, and you could see lights on. You said that you knocked on the door but XY ignored you. You said you got upset and set your car on fire, using petrol from the boot and a lighter. You said you got burned and that upset you more.
You said you had been stressed because you could not find work and XY would not let you see the children.
I should note at this point that XY says in her statement that she had previously allowed you to see the children, but she had sought a restraining order against you because of an incident that had happened a short time before 10 July 2015.
…
Returning to your interview with the police, you said that, after setting the car alight, you broke the living room window and got into the house that way in order to look for your papers. You said you became upset when you could not find your papers, and you started pulling things down and breaking things. You said you then went upstairs and asked XY where your paperwork was, and she said she did not have it. You admitted grabbing the phone from her and smashing it, but claimed you did not know who she was speaking to.
You said that you became aware that the fire appeared to be spreading and people outside were saying there was a fire. You thought the house might catch on fire. You said that is why you grabbed your [child] and took [child] downstairs. You acknowledged [your child] was crying. You said you threw the bookshelf down the stairs when you were coming down. You said you were angry. You denied you put obstacles in the way to prevent XY and your [other] child from getting out.
On 14 November 2016, QGMJ’s visa was cancelled by a delegate for the Minister for Immigration and Boarder Protection (the “Minister”) pursuant to s 501(3A) of the Migration Act (the “Cancellation Decision”). This was a mandatory cancellation of QGMJ’s visa because it was found that QGMJ did not pass the character test by reason of his “substantial criminal record” (as defined in s 501(7)(c) of the Migration Act (G20)). Specifically, it was found that QGMJ had been sentenced to a term of imprisonment of 12 months or more and was also (at the time his visa was cancelled) serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.
QGMJ was moved from prison to detention at Yongah Hill Immigration Detention Centre as a result of the mandatory cancellation of his visa. He remains there today.
On 14 November 2016, QGMJ made representations to the Minister seeking revocation of the mandatory visa cancellation decision (T6).
On 7 February 2017, a delegate of the Minister notified QGMJ of the decision not to revoke the cancellation of his visa (T29). The delegate was not satisfied that QGMJ passed the character test or that there was another reason why the Cancellation Decision should be revoked. Accordingly, the delegate decided not to revoke the decision to cancel QGMJ’s visa (T2 at 3-5).
On 9 February 2017, QGMJ lodged an application with this Tribunal for review of the decision not to revoke his visa cancellation (T2).
ISSUES
The broad issue for consideration by this Tribunal is whether the discretion in s 501CA(4) of the Migration Act should be exercised in QGMJ’s favour having regard to the mandatory considerations identified in Ministerial Direction No. 65 (discussed below).
To determine this broad issue, the Tribunal must decide:
(i)whether QGMJ passes the “character test” as that term is used in s 501(6) of the Migration Act; and
(ii)if not, whether the discretion in s 501CA(4) of the Migration Act should be exercised in QGMJ’s favour such that the mandatory decision to cancel his visa is revoked/set aside.
EVIDENCE
The matter was heard over two days – 2 August 2017 and 13 September 2017. QGMJ appeared via video from Yongah Hill and was not legally represented. The Minister was represented by Mr Burgess of Sparke Helmore Lawyers.
This matter was heard over two days because, during the first day of hearings, QGMJ indicated that he could not return to Kenya because of a perceived threat of violence from his family (related to what he claims is his conversion from Islam to Christianity) and his mental health condition (having been diagnosed with schizophrenia). The Tribunal determined that further evidence in relation to these issues was required from counsel for the Minister, with a right of reply from QGMJ. That information was provided to the Tribunal and QGMJ on 23 August 2017 and then discussed before the Tribunal on 13 September 2017.
The evidence before the tribunal consisted of the following:
·     A letter from QGMJ to the Tribunal received 30 June 2017 (A1);
·     A letter of support for QGMJ received 30 June 2017 (A2);
·     A 162 page set of T-documents (T1 to T29) (R1);
·     A Statement of Facts, Issues and Contentions from counsel for the Minister dated 22 May 2017 (R2);
·     Summons material from the WA Police in relation to QGMJ’s criminal history (R3);
·     Supplementary written submissions from counsel for the Minister dated 23 August 2017 (R4)
The Tribunal also heard oral evidence from QGMJ. No other witnesses were called.
The Tribunal has reviewed all of the material before it and highlights relevant materials below.
CONSIDERATION
(i)Does QGMJ pass the Character Test?
The Tribunal must first consider whether QGMJ passes the “character test” as that term is defined in s 501 of the Migration Act.
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that the Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a),(b) or (c); or
... and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.
Section 501(6) of the Act provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added].
Section 501(7) of the Act relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more.
It is common ground that:
·as a consequence of receiving a sentence of imprisonment in excess of 12 months, QGMJ has a “substantial criminal record” and, as a result, does not pass the character test in s 501(6) of the Migration Act; and
·as QGMJ was serving a sentence of imprisonment, on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act.
On the evidence before it, the Tribunal finds that QGMJ does not pass the character test as defined in the Migration Act.
(ii)Should the Tribunal Revoke the Decision to Cancel QGMJ’s Visa?
Having determined that QGMJ does not pass the character test and was liable for the mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of QGMJ’s visa should be revoked by the Tribunal standing in the Minister’s shoes.
Section 501CA(4) of the Act provides that the Minister (and the Tribunal) may revoke the mandatory cancelation of an applicant’s visa if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked. [Emphasis added].
The central question before the Tribunal is whether there is “another reason” to revoke the decision to cancel QGMJ’s visa.
When considering QGMJ’s request to revoke the decision to cancel his visa, the Tribunal must comply with Ministerial Direction No. 65 (“Direction No. 65”) (as per s 499 (2A) of the Migration Act).
Direction No. 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.
Paragraph 6.2 of Direction No. 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa. It provides:
6.2   General Guidance
(1)    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)    In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)    The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:
6.3   Principles
(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)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)    Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
...
(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Paragraph 7(1) of Direction No. 65 provides guidance to the Tribunal on how to determine whether mandatory cancellation of a non-citizen’s visa should be revoked.
Paragraph 7(1) states:
How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
...
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction No. 65 further states:
8.     Taking the relevant considerations in account
(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4)    Primary considerations should generally be given more weight than the other considerations.
(5)    One or more primary considerations may outweigh other primary considerations.
Part C of Direction No. 65 sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA (4) of the Act.
Primary Considerations
Pursuant to paragraph 13(2) of Direction No. 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
i.Protection of the Australian community from criminal or other serious conduct;
ii.The best interests of minor children in Australia; and
iii.Expectations of the Australian community.
(i) Protection of the Australian Community
Paragraph 13.1(1) of Direction No. 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added]
(a)Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction No. 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Relevantly, these include:
13.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offence that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
…
[Emphasis added]
In assessing the seriousness of QGMJ’s criminal offending, the Tribunal first turns its attention to his criminal record.
Overall, QGMJ has been convicted in Australia of the following offences:

Offence

Offence date

Sentence date

Sentence

Stealing

15.09.2006

11.10.2006

Adult CRO: 6 months,

$250 undertaking

Carried an article with intent to injure (disable)

15.09.2006

11.10.2006

Adult CRO: 6 months,

$250 undertaking

Possessing a prohibited drug (cannabis)

25.07.2010

31.08.2010

Adult CRO: 6 months,

$500 undertaking

DUI – Excess 0.08g/100ml

19.06.2011

16.11.2011

$500 fine, disqualified from driving 4 months

Unauthorised driving by learner

19.06.2011

16.11.2011

$200 fine

Failed to reasonably ensure that fire/ignition source did/would not cause a fire that could not be controlled

10.07.2015

20.09.2016

(appeal)

On appeal: 2 years imprisonment (concurrent)

Aggravated burglary and commit offence in dwelling

10.07.2015

20.09.2016

On appeal: 2 years imprisonment (concurrent)

It is noted that, in addition to the above, a charge of “threats to injure, endanger or harm a person” committed on 23 July 2010 was dismissed due to “unsoundness of mind” on 6 October 2011. QGMJ’s mental health status is discussed further below.
As correctly noted in representations made on behalf of QGMJ in support of his request for revocation (T14 at 42), QGMJ has been convicted of nine offences since 2006. His offences up to 2011 were described in 2016 as a ‘minor criminal record’. They included two matters related to alcohol and cannabis and carrying an article with intent to injure. QGMJ received fines and other non-custodial sentences for those offences.
In March 2016, however, QGMJ was found guilty of the very serious criminal offences of “failed to reasonably ensure that fire/ignition source did/would not cause a fire that could not be controlled” and “aggravated burglary”. He was initially sentenced to three years imprisonment for each of these offences in the Supreme Court of Western Australia (T18). On appeal, his sentence was reduced to two years imprisonment on each charge, to be served concurrently (T19).
It is further noted that the summons materials from the WA Police show that QGMJ was the subject of a domestic violence order at the time he committed his most recent offences. This order was issued in 2010 as a result of violent and threatening behaviour committed against his former partner and one of his minor children (who, along with another child, were the victims of his most recent offences). The violent and threatening behaviour involved QGMJ holding a baseball bat and telling his former partner that he would “crack [her] skull in”. He then “took a few steps, raised the bat again and said ‘I will do the same to her’ and pointed to [his child], who was in the cot” (R3).
In relation to the seriousness of QGMJ’s crimes, counsel for the Minister contended as follows in a Statement of Facts, Issues and Contentions dated 22 May 2017:
27.In considering the nature and seriousness of the applicant’s conduct to date, the protection of the Australian community weighs heavily against a favourable exercise of the discretion in s 501CA(4) of the Act. The applicant’s crimes should be viewed as serious crimes for the following reasons:
a.The principle that, without limiting the range of offences that may be considered serious, violent crimes are viewed very seriously: A number of the applicant’s offences have involved violence including carrying weapons and the charge of Aggravated burglary and commit offence in dwelling (13.1.1(1)(a));
b.The principle that crimes committed against vulnerable members of the community (such as minors) … are serious. The crime which resulted in the applicant’s most recent incarceration involved putting his children at significant risk of harm (13.1.1(1)(b)).
c.The sentence imposed by the Court. The respondent contends that the sentence imposed on the applicant indicate that the Court viewed these offences seriously (13.1.1(1)(c)). In the sentencing remarks of Justice Fiannaca, His Honour considered the protection of the Australian Community and found:
First I must consider whether there is a need to protect the community from you, because you have shown that you are capable of committing offences of this kind, the first of which had the potential to put people’s lives and property at risk. Secondly there is a need to protect people who are in the vulnerable position that XY was in from ex-partners who might be inclined to resort to violence and destructive behaviour for vindictive reasons or to vent their anger when the relationship breaks down.
28.The serious nature of the applicant’s offending behaviour is demonstrated in the sentencing remarks of Fiannaca J who noted (in relation to the setting of the fire):
… this offence comes very close to the offence of arson, because you lit the fire deliberately, using petrol and a lighter. It was not an accident and it involved negligence of the worst kind, in terms of the potential for harm. You lit the fire deliberately in a car parked under a carport next to a residential unit, someone’s home, and in clear disregard for the safety of XY and your children, who were living in the unit and close by, and also in clear disregard of your own safety. You made no attempt to put the fire out; you made no attempt to seek assistance to put it out. Your motive was, at least in part, to prevent XY or anyone else she might be seeing from driving the car, and you were angry that she had not let you into the house. It was vindictive behaviour.
Each of those factors is an aggravating factor that places the offence at the upper end of seriousness for offences of its kind.
29.In relation to the burglary charge, Fiannaca J noted:
While I accept that you did not intend to inflict violence on XY or the children, you did assault XY when you forcefully grabbed the phone from her. You also were rough when you grabbed your 4-year-old to take her out of the house. More significantly, your behaviour in ransacking the living area and destroying or damaging property, including the television, was, in my view, more than just an angry reaction to not being able to find your documents. I will come back to your mental health issues later, but the inference I draw is that you were punishing XY for excluding you from the house. Again, it was vindictive behaviour and intended at least to intimidate XY. The fact that, whether deliberately or recklessly, you created barriers to XY and the children being able to get out of the house, while there was a threat of the fire spreading to the unit, is another aggravating factor.
The way you forced your way into XY’s bedroom was terrifying for her and your children. Your aggressive behaviour in the presence of your children, which clearly traumatised them, is a significant aggravating factor. So is the long term impact that your offending has had on your ex-partner and your children. Your conduct has caused enormous damage to their lives. I have read the victim impact statement prepared by XY. She says that your offending has changed her life and the lives of her (and your) two children. They have had to seek counselling for anxiety and stress. Your oldest child has autism and has needed extra support as a result of these events. XY says they have been robbed of their sense of security, peace of mind and the right to feel safe in their own home ... as she points out, no amount of money can ever get back the feeling of safety in her own home and their carefree way of life, which they have lost.
30.Fiannaca J noted that:
Imprisonment is the only appropriate sentence in this case … The offences are simply too serious and all the circumstances surrounding your offending are too serious to justify any other way of dealing with the offences. In my opinion there are very compelling reasons why a suspended term of imprisonment would not be appropriate in this case. Firstly, the offences are, in my view, too serious. Secondly, there is a need for personal deterrence and protection of the community in the way that I have spoken about before. So far as personal deterrence is concerned, it does not relate solely to the potential that you might offend again against XY. It is evident from your aggressive behaviour during the time that you have been in custody, admittedly as a result of the deterioration of your mental health, that you could potentially pose a risk to the community more broadly when your mental health is not properly controlled.
These are matters that you are going to have to address when you are ultimately released from custody, but, the need for protection of XY and the broader community mean that a conditional suspended imprisonment order would not be appropriate in this case.
In relation to this issue, the Tribunal also notes the summary of the Ministerial delegate in refusing to revoke the visa cancellation decision as follows:
16.In considering the nature and seriousness of QGMJ’s criminal offending I take the view that offences such as failed to reasonably ensure that fire/ignition source did/would not cause a fire that could not be controlled and aggravated burglary and commit offence in dwelling should be viewed seriously, because of the high risk that an uncontrolled fire may cause physical and psychological harm and financial loss to members of the Australian community. I also considered that aggravated burglary can be viewed seriously if it involved aggressive or threatening behaviour towards victims. In view of the information set out below, QGMJ’s offences fall within these parameters.
17.Sentencing remarks indicate QGMJ went to the publicly-owned home of his former partner and their children about a year after their relationship had ended. His car had been parked in a communal carport there for some time, unable to be driven. QGMJ poured fuel in through a window of the car and ignited the fuel. A subsequent fireball partially engulfed him and then took hold, destroying the car, causing minor damage to the carport and smoke damage to the building, and threatening to damage other vehicles and spread to his former partner’s home. QGMJ was aware his former partner and the children were at home. The Judge accepted that QGMJ had not intended to set fire to the home or other cars but found that he had acted with clear disregard for the safety of his former partner and their children (Attachment C).
18.Sentencing remarks indicate QGMJ then broke a window to enter the flat and made his way through the house smashing property and pulling down bookshelves, causing considerable damage and creating significant obstacles for anyone trying to access the bedroom or leave the house (Attachment C. p5).
19.[QGMJ’s children] had been in the bath when their mother observed flames and saw QGMJ near the car. She ran to get them and took them to her bedroom. With the sound of QGMJ breaking things downstairs, she called emergency services and began talking to police. QGMJ forced his way into the bedroom where his former partner [and children] were cowering. He grabbed the phone off his former partner and smashed it, terminating her call. [The children] were terrified and clinging to their mother. QGMJ forcefully grabbed hold of [child] by both arms, lifted [child] off the ground, and despite his former partner’s pleas to return [child], and [child] screaming, took [child] downstairs and attempted to leave. A neighbour negotiated with QGMJ to hand over [child], which he eventually did; the neighbour’s statements described [the child] as hysterical and traumatised. Another neighbour entered the house to help QGMJ’s former partner out. Despite a large bookshelf blocking the door to the bedroom, QGMJ’s former partner and [child] were eventually able to negotiate the obstacles created by QGMJ and escape the flat.
20.The Judge said that the manner in which QGMJ forced his way into his former partner’s bedroom was ‘terrifying for her and your children’ that his aggressive behaviour in the presence of [the children] ‘clearly traumatised them’, and that his conduct had caused ‘enormous damage to their lives’. His former partner’s Victim impact Statement indicated that she [and the children] sought counselling for anxiety and stress and [one child], who has autism, had required extra support (Attachment C. p13),
21.I find that the above information confirms that this was very serious offending, in light of the details of QGMJ’s actions, the very grave potential danger posed to his former partner and their children, as well as the property of other persons, and the serious ongoing impact of his actions on the victims. While I acknowledge that he did not intend to harm his former partner or their children, I find that this fact does not diminish the force of the factors I have mentioned, which were caused directly by his reckless behaviour.
22.The primary court acknowledged a psychiatric report and noted that it had been accepted by the prosecution that QGMJ was suffering from a mental illness (paranoid schizophrenia) which had contributed to his offending (Attachment C. p9). It also noted further medical evidence that during the year before the offence he had been attending a clinic to receive treatment for his condition, and that in the month before the offence he had reported increased paranoia and some hallucinations, and had requested increased medication. However it was also noted that during his police interview after the offending he did not display overt irrational behaviour or ‘internal stimuli’ (Attachment C, ppl6-17). After carefully weighing up this evidence, the Judge said ‘I am not satisfied on the balance of probabilities that at the time of the offences you were suffering from an acute relapse of your mental illness’, though he did accept that the underlying condition had impaired QGMJ’s judgment to some extent (Attachment C. pp20-21).
23.I note that, after taking into account the medical information and commenting that QGMJ’s abuse of cannabis and alcohol complicated the issue of causation, the Judge concluded: ‘I am of the view that your moral culpability is diminished to only a small extent’ (Attachment C, p22).
24.On appeal, QGMJ’s counsel argued that the key issue in the appeal was the significance of his mental illness, presenting further recent expert reports (Attachment D, p7). The Appeal Court judgment does not contain an explanation of the reasons for its findings, but it did agree to reduce the primary sentences somewhat. However I note that the Court did not find that QGMJ should not be held responsible for his actions and still imposed significant terms of imprisonment for the offences.
25.The Direction states that sentences imposed by the courts for offences are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy. I consider that the two sentences of two years imprisonment imposed on QGMJ reflect the seriousness of his offending.
26.QGMJ was convicted of seven other offences prior to the matters discussed above. I acknowledge that these were generally of a comparatively minor nature, as reflected in the non-custodial sentences imposed. However in combination with the very serious offences described above, they add somewhat to the overall seriousness of his criminal history, in my opinion.
In determining whether QGMJ’s conduct should be viewed as “serious”, the Tribunal places considerable weight on the sentencing comments outlined above and generally. These reflect considerable concern on the part of the judiciary about QGMJ’s conduct and evidence serious criminal conduct on his part.
QGMJ does not deny that these offences occurred or were serious. Nor does he deny the summary of what occurred as described by Justice Fiannaca. Before this Tribunal, QGMJ demonstrated considerable remorse. He was entirely credible in that regard.
It is noted that in a letter from QGMJ to the Department of Immigration and Border Protection (undated) (T13 at 37), QGMJ wrote:
... I was not in the right frame of mind and properly medicated at the time of my offences. I am fully aware of what’s going on at the moment as I wish to move forward in my life. I have been diagnosed with schizophrenia and at the time and [sic] properly medicated.

Further, in his revocation submission to the Department of Immigration and Border Protection’s (T14 at 40), it was submitted:
QGMJ advises that at the time of his offences he was having mental health problems and finding it difficult to cope. He said he has learnt his lesson and will definitely not reoffend.
…
Sentencing remarks indicate QGMJ said he was diagnosed with paranoid schizophrenia in 2007 or 2008. Shortly after being remanded in prison QGMJ was diagnosed by a psychiatrist as having ‘an unstable psychotic disorder with possible depressive symptoms or emerging catatonic state’. Two psychiatric reports written by a psychiatrist in 2015 and 2016 diagnosed a ‘relapse of paranoid schizophrenia, secondary to cannabis use, erratic compliance with treatment and psychological stressors’. The psychiatrist made a further diagnosis of a ‘mental and behavioural disorder due to alcohol and cannabis’.
QGMJ’s counsel noted the psychiatrist who wrote the 2015 and 2016 psychiatric reports stated:
‘Regarding the relationship between QGMJ’s mental illness and the offence, I believe that they [the offences] most likely occurred due to the underlying psychotic illness, in my view paranoid schizophrenia’.
Further, in a written submission to the Tribunal dated 30 June 2017 (A1), QGMJ wrote:
Firstly I would like to state that at the time of my offences I was not in a sound state of mind due to being incorrectly medicated. However I take full responsibility for my actions at the time in any event. Furthermore this time in custody has had a devastating impact on myself and my loved ones, especially my children whom I love and miss very much. For me to be deported would be detrimental to my safety and wellbeing. I have no family or friends in Kenya and was advised by my father before he passed away that if I was to return I would be harmed or worse. I have been living in Australia for over 13 years and in that time made my own family and a number of very close and dear friends. I have always worked hard when employed whilst being in Australia. I love this country more than what I remember of my motherland. This time in custody has given me very much time to reflect on my past behavior. I am very remorseful of my actions, and can assure that I will never find myself in any kind of trouble ever again. I now know that my actions at the time of my offending were terribly working and very out of character. I was incorrectly medicated at that time and have since been on the right medication. I would love to be able to apply to family courts to regain access to my children in the correct manner.
I swear if granted the opportunity to remain in Australia I will abide by the law in every way.
In conclusion, I would like to state that all I want out of life is to be able to earn the love and respect of my children. To be a respectable father to them.
I assure you I will be responsible and not be any kind of risk to the Australian Community. Finally can you please give this request your heartfelt consideration, and anything you may see fit in me having complete to remain here in Australia will be given my upmost respect [sic].
In oral submissions to the Tribunal QGMJ again stressed that he was “quite sick” when he committed these offences. He also accepts that he had a serious drug addiction and his illicit drug use contributes to a deterioration in his mental health.
The effect of QGMJ’s mental health condition is discussed in more detail below. While it is clear that he does indeed suffer from a serious mental health condition, and while the Tribunal has considerable sympathy for him in this regard, this does not detract from the seriousness of his most recent serious crimes.
The Tribunal accepts that QGMJ has shown remorse for his actions. He is also psychologically unwell. He also has an extensive drug addiction and alcohol issue that is undoubtedly the source of much of his offending. His addictions do, on his own evidence, trigger a decline in his mental health condition. These are mitigating factors. However, it is noted that incarceration is a last resort in the sentencing hierarchy. In this regard, even allowing for an early guilty plea in relation to his most recent offences and clear evidence in relation to his mental health condition, QGMJ was sentenced to a significant term of imprisonment. As correctly summarised by the delegate for the Minister in determining whether QGMJ’s visa decision should be revoked, after taking into account the medical information and commenting that QGMJ’s abuse of cannabis and alcohol complicated the issue of causation, Justice Fiannaca concluded: “I am of the view that your moral culpability is diminished to only a small extent”. On appeal, QGMJ’s counsel argued that the key issue in the appeal was the significance of his mental illness. The Appeal Court judgment does not contain an explanation of the reasons for its findings, but it did reduce the primary sentences by one year. However, the Court of Appeal did not find that QGMJ should not be held responsible for his actions and still imposed a significant term of imprisonment for these serious offences – that being two years.
Having viewed the evidence before it, QGMJ’s most recent offences must be viewed objectively as extremely serious. His crimes were violent and committed against his own vulnerable children and a partner who was clearly, on the evidence, terrified and in fear for her safety and the safety of her young children. Further, the frequency of QGMJ’s offending over a very lengthy period and a clear trend of increasing seriousness are factors that weigh heavily against the revocation of the decision to cancel his visa.
Overall, QGMJ’s most recent offences cannot be described as anything other than very serious. They were crimes of violence against vulnerable children and his partner. The negative, indeed devastating consequences for his children and ex-partner will be long term.
In the circumstances, the Tribunal finds that QGMJ’s criminal record weighs heavily against the revocation of the decision to cancel his visa.
(b)The risk to the Australian community should further offences be committed.
Paragraph 13.1.2(1) of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In relation to the risk to the Australian community should QGMJ commit further offences or engage in other serious conduct, the Tribunal notes that in a Statement of Facts, Issues and Contentions dated 22 May 2017, counsel for the Minister contended as follows:
Risk to the Australian community
33.For the purpose of determining the risk to the Australian community, the Tribunal is required to cumulatively consider the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of the applicant engaging in further criminal or other serious conduct.
34.With respect to the risk of the applicant reoffending, the respondent contends that the Tribunal should have regard to:
a.the applicant’s criminal history;
b.the increasing seriousness of the applicant’s offending;
c.despite being treated by psychiatrists … as an outpatient, such treatment has proved insufficient to alter the applicant’s behaviour;
d.The long-standing nature of the applicant’s abuse of drugs which appears to have contributed to the applicant’s offending behaviour.
35.In addition, the nature of the harm to individuals or the Australian community could potentially be far reaching given the nature of the applicant’s mental illness and the fact that it remains less than optimally treated (see comments of the parole board on 29 November 2016 at T20).
36.The applicant has not provided any character references from family or members of the community and it is noted that the applicant has not been in contact with [sic] or had any visits during his time in prison. The respondent contends that the applicant has not demonstrated that he has appropriate support systems in place to ensure he remains compliant with medication and abstinent from illicit drugs which appear to be the primary contributors to his offending.
37.In addition we note that the applicant has provided no evidence that he has completed any rehabilitation programs whilst in prison. We note that he was first scheduled to participate in a Think First drug rehabilitation program in the first quarter of 2017. During his time in prison he has been involved in five “property convictions for conduct” during 2015, a conviction for disorderly behaviour in October 2015 and an assault in August 2015. In denying the applicant parole as recently as 29 November 2016, the Board found that the convictions “suggested an unwillingness or inability to comply with directions or the consequences of his unstable mental health at the time”. The Board also found that the applicant had unmet treatment needs (for substance abuse, consequential thinking and violence) and that his release plan did not include sufficient protective strategies to reduce risk to the safety of the community, including inadequate elements to assist in the management of his mental health.
38.Having regard to these factors, the respondent contends that these matters clearly establish a real risk that the applicant will reoffend by committing further violent and serious crimes upon the Australian community if permitted to remain in Australia.
39.As such, the respondent contends that the protection of the Australian community weighs heavily in favour of not revoking the cancellation of the applicant’s visa.
The Tribunal also notes the comments of the Ministerial delegate when refusing to revoke the visa cancellation decision as follows:
29.As set out above, QGMJ’s reckless actions caused a very grave danger to the lives and physical well-being of his former partner and her children. Should QGMJ re-offend in a similar manner, it may result in psychological and/or physical harm, as well as property and financial loss to members of the Australian community.
Mental Health
30.I note QGMJ has submitted he was ‘not in the right frame of mind’ and ‘not properly medicated’ at the time of his offences (Attachment I). QGMJ’s offending commenced around the same time as his psychotic symptoms first emerged in 2006. As discussed above, it is clear from the primary sentencing remarks and the appeal judgment that QGMJ’s offending was linked to serious psychiatric illness, namely paranoid schizophrenia that he had suffered for some years. Sentencing remarks indicate QGMJ said he was diagnosed with paranoid schizophrenia in 2007 or 2008 and the Judge accepted this diagnosis (Attachment C, p14). Shortly after being remanded in prison QGMJ was diagnosed by a psychiatrist as having ‘an unstable psychotic disorder with possible depressive symptoms or emerging catatonic state’ (Attachment C, p17). Two psychiatric reports written by a psychiatrist in 2015 and 2016 diagnosed a ‘relapse of paranoid schizophrenia, secondary to cannabis use, erratic compliance with treatment and psychological stressors’ (Attachment C, p19). The psychiatrist made a further diagnosis of a ‘mental and behavioural disorder due to alcohol and cannabis’ (Attachment C, p19). QGMJ’S counsel on appeal noted that the psychiatrist who wrote the 2015 and 2016 psychiatric reports had stated:
‘Regarding the relationship between QGMJ’s mental illness and the offence, I believe that they [the offences] most likely occurred due to the underlying psychotic illness, in my view paranoid schizophrenia’ (Attachment D, p3).
31.I accept that QGMJ’s offences occurred in significant part due to his paranoid schizophrenia. Accordingly, I am of the view that QGMJ’s awareness of the need for treatment and his actions in seeking such treatment are of crucial significance in assessing the likelihood of him offending in future.
32.On the basis of the mental health clinic records and psychiatric assessments referred to in the decisions of the primary and Appeal Courts, I accept QGMJ demonstrated some insight into his mental health, identified the risks to his former partner (and children) sought treatment on multiple occasions before offending. However I note that this did not prevent him then carrying out the offences described above.
33.I observe that the primary Judge noted that professional assessment had found that QGMJ’s mental illness was exacerbated and partially triggered by his use of alcohol and drugs, and that he had reported commencing using cannabis and alcohol regularly in the past and, despite a few years of abstinence from cannabis, began using it again in 2013 and increased his usage in 2014 in the context of his relationship ending (Attachment C, p14-16). I find QGMJ’s alcohol use prior to his offence was a contributing, though not primary, cause for his behaviour. I further find that the likelihood of crises in his mental state will be increased if he continues to abuse alcohol and/or drugs.
Risk of Reoffending
34.I accept, as did the Courts, that QGMJ did not intend to set fire to any property other than his own car and did not intend harm to his family, and that he showed genuine remorse for his actions. However this does not suffice to satisfy me that the risk of him reoffending is negligible.
35.I note that sentencing remarks indicate that QGMJ’s mental health deteriorated in the months after he was remanded, and he engaged in aggressive behaviour in prison between July-October 2015 and was subsequently admitted under the Mental Health Act to a forensic psychiatric unit for assessment and treatment of his psychosis. QGMJ returned to prison, engaged in further aggressive behaviour from November-December 2015, and was consequently re-admitted to the forensic psychiatric unit. The psychiatrist noted QGMJ had been abstinent while in custody, indicating substance use was unlikely to be a causal factor in his aggressive behaviour in prison (Attachment C, pp 18-19).
36.However I further observe that a May 2016 WA Corrective Services report states ‘Prisoner QGMJ appears to have settled into Acacia prison well. He interacts well with staff and his peers without any issues’ and describes him as ‘polite, cheerful and respectful actively participating when required’ (Attachment K, p1 & 3). I note QGMJ is receiving medication and under the care of a psychiatrist in prison (Attachment J). I acknowledge that this indicates that QGMJ’s mental health appears to have stabilised, likely due to appropriate medication and treatment, such that he is polite, respectful, and interacts well with other prisoners and staff.
37.I observe that the Western Australia Prisoners Review Board considered QGMJ’s request for parole quite recently, on 29 November 2016 (Attachment E), and decided to deny parole on the basis that QGMJ’s release would present ‘an unacceptable risk to the safety of the community’ (Attachment E, p1), based on factors including:
·Unmet treatment needs (substance abuse, consequential thinking, and violence). The Board noted that QGMJ’s violence and aggression during the early stage of his prison term suggests further treatment needs;
·Poor prison conduct, noting damage to property on multiple occasions and single incidents of disorderly behaviour and assault;
·Insufficient protective strategies in release plan in relation to the management of his mental health that will reduce the risk to the safety of the community.
38.I note that the Board made findings about QGMJ’s behaviour in the early part of his custodial term and that, as outlined above, his behaviour has since improved greatly. I further note that the WA Corrective Services report of May 2016 indicated that QGMJ was scheduled to participate in a Think First program [social problem-solving skills] in late 2016, a Pathways program [substance abuse] in early 2017, and education and vocational courses (Attachment K, p2). QGMJ also advises he is learning English and will have accommodation support from Outcare (a rehabilitation service provider) on his release from prison (Attachment G, p8). I find that QGMJ does have some protective strategies to support living in the community, but I have no evidence before me of the strategies to manage his mental health in the community, which is a risk the Prisoners Review Board raised. I consider that the Board may re-evaluate QGMJ’s situation in coming months, by which time he may have completed further rehabilitative courses and demonstrated further compliant behaviour. However at present I must accept the Board’s assessment of November 2016 as the most current evaluation of the risk he represents.
39.I observe QGMJ says a Violence Restraining Order was issued in July 2015 [at the time of his offences] which he understands is due to end in 2018 (Attachment H). QGMJ does not specify who the protected people are in the Violence Restraining Order, but twice refers to it when asked questions about his contact with [his children]. Based on his offences and his responses, I am of the view that his former partner … and children, or at least [one child] are likely the protected people. Sentencing remarks indicate QGMJ’s former partner has relocated to a place unknown to him (Attachment C, p25). I am of the view that this tends to reduce the likelihood of further offending against them by QGMJ. I further note that while QGMJ is seeking to have contact with [ex partner and child], he is doing so in an appropriate manner, by going through the Family Court of Western Australia (Attachment FI).
40.In light of the marked contrast in QGMJ’s behaviour while in prison - from violent behaviour and involuntary psychiatric admissions to a polite and respectful prisoner who got on well with prison staff and other prisoners once appropriate medication was established, I am of the view that the risk of QGMJ reoffending is heavily dependent on him receiving appropriate medication and treatment for his mental health. I concur with the primary sentencing Judge’s view that QGMJ ‘could potentially pose a risk to the community more broadly when [his] mental health is not properly controlled’ (Attachment C, p25).
41.I acknowledge that QGMJ has demonstrated he is aware when his mental health is deteriorating, can recognise the risk this entails with respect to the safety of his former family and actively seeks medication and treatment/support. The initial sentencing Judge noted that ‘one might have some confidence that you will try to keep your mental health problems under control in the future, when you come to be released from prison’ (Attachment C, p23). I find QGMJ’s awareness of his mental health and active seeking of medication and treatment lowers the likelihood of him reoffending.
42.I accept that the likelihood of QGMJ reoffending is significantly reduced by his insight into his offending and the further professional medical attention he has received since his incarceration, including the establishment of an appropriate regime of medication. However I note that all of this has occurred in that closely controlled environment and his ability to adhere to medication, continue to seek treatment and refrain from alcohol and drug abuse has not yet been tested in the general community, where he will have much less supervision and immediate support should any crisis occur. Therefore I cannot be confident that the likelihood of him reoffending is negligible. Should he do so, the potential consequences are of a serious nature.

It is evident from all of the evidence before the Tribunal that QGMJ has a serious mental health issue and a serious issue with illicit drug use that compounds the effects of his mental health condition.
In this regard, the Tribunal notes the summary and comments provided Justice Fiannaca in sentencing QGMJ (T18 at 78):
XY says that you developed mental health problems while she was pregnant with your youngest child in 2010. However, Dr P says that you told medical staff at Hakea Prison that you were diagnosed with schizophrenia in 2007 or 2008. In any event, it appears that your mental health issues have been known for some years. You have been diagnosed as suffering from paranoid schizophrenia. However, your mental health problems are complicated by the fact that your cannabis use may have triggered or contributed to psychotic symptoms over time.
XY says that the incident in 2010 involved strange behaviour which included you making threats and destroying some property. This resulted in you being admitted as an involuntary patient to a mental health clinic.
It appears that, after that, there was a period when you were separated from XY, but she eventually took you back at the unit in Fremantle. While in Fremantle, you attended at the … Mental Health Clinic for treatment as an outpatient. I will come back to the medical evidence shortly.
Your relationship with XY deteriorated. She identifies your use of alcohol and jealousy as factors that contributed to that breakdown. She asked you to leave in June 2014, after what she has described as an explosive argument.
At the time of the offences, you had been separated from XY for about a year. During that time, she had allowed you to see the children, and you had even looked after them, including picking them up from school. I accept that you enjoyed your time with your children, and that they are very dear to you. Of course, it makes all the more terrible your behaviour in their presence at the time of the offences.
In any event, there were a few incidents during the period between the separation and the time of the offences when you became abusive towards XY, and one of those, in June 2010, resulted in her seeking a violence restraining order against you. She also contacted the … Clinic to check if you had been attending for treatment.
You had casual part-time work, on and off, but, at the time of the offences, according to what you told Dr P, you were unemployed. I was told that you were not receiving Centrelink payments. You had been living either with friends, ‘couch-surfing’, or on the streets.
…
You have been a regular user of cannabis and alcohol. You told Dr P that you had a few years of abstinence from cannabis, but started using again in 2013, and increased your use in 2014 in the context of the breakup of your relationship with XY. You described using significant amounts of cannabis.
Turning to the medical evidence concerning your mental health in the lead up to the offences, Ms Z provided the following outline from medical records she obtained from the clinic:
1.From July 2014 until May of 2015, you were attending the … Clinic as an outpatient and receiving depot injections. During that period, you reported ongoing cannabis use, but said you were smoking less than in the past.
2.On 9 June 2015, you attended at … Clinic, after making a phone call the previous day, requesting to see a doctor. I have been provided with the notes from that visit. You said you were not feeling well. You reported increased paranoia and said you were feeling depressed. You were not able to identify a clear trigger for your paranoia and you denied any drug use. You expressed concern about going to see your children while you were not mentally stable, as it might cause you to do irrational things. The examination of you at that time showed that you had no formal thought disorder; you were not responding to internal stimuli; you had good judgement and insight; and your cognition was good and intact. The notes record there were no acute risks, although it is not evident what risks are being referred to. Whatever they were, the note says they were ‘elevated when unwell’. The author noted the impression that you were suffering mild paranoia, in the early stages of relapse of paranoid schizophrenia. You were offered olanzapine which you agreed to take to help you with your sleep. You were to be followed up in one month’s time.
3.On 23 June 2015, XY attended the clinic and said she was concerned about you.
4.On 29 June 2015, you attended the clinic, requesting your medication. You said that you had been very unwell for the last two weeks and had had auditory command hallucinations that were bothering you. You thought that may have been the reason for your problems with XY around that time. You declined a hospital admission at that time. Although concern was expressed by the person who saw you about your personal circumstances, I have not been given any information to suggest that you were assessed to be suffering from any particular symptoms when you presented.
5.Two days later, on 1 July 2015, you again attended at the clinic requesting accommodation support and more medication. At that time, you were recorded as having no psychotic symptoms. The record states that you had been compliant with medications but you said you disliked the injections and asked if you could be changed to oral tablets. After discussion, you agreed to continue with injections for another six months.
So, that is the information from that time about the state of your mental health before you committed the offences. You subsequently told Dr P, on 2 November 2015, that when you were seen at the clinic, before the offences, you were feeling stressed in the context of marriage difficulties, but you denied feeling unwell.
During your interview with the police on 11 July 2015, you come across as relatively normal. You do not display overt irrational behaviour or beliefs, as your counsel has acknowledged. Your answers to questions are contextually appropriate. There is no indication whatsoever of being distracted or reacting to internal stimuli. In short, there is no evidence of thought disorder. You provide ordinary explanations for your offending behaviour, as I have described earlier.
Ms Z has submitted on your behalf, however, that I should find that you were psychotic at the time of your offences and that your mental illness has contributed to the offending in a manner that reduces your moral culpability. The submission relies on the deterioration of your mental health after you were remanded in Hakea Prison and the opinions expressed by Dr P in her reports.
Dr P reports that in Hakea Prison your medication was reviewed and you were followed up by a mental health nurse and a visiting psychiatrist. You were described as responding to unseen stimuli, looking perplexed at times and likely experiencing referential delusions from the television. You were reviewed by a psychiatrist on 20 August 2015 and were diagnosed as suffering an unstable psychotic disorder with possible depressive symptoms or emerging catatonic state. Your medication was reviewed and you were followed up in prison.
Over the following couple of months, your mental state deteriorated. Dr P considers that it was likely due to erratic compliance with the oral medication. During reviews, the underlying psychotic symptoms became more prominent. Also during the period from 20 July until 25 October 2015, you engaged in aggressive behaviour within the prison, damaging property (including a television), assaulting other prisoners and refusing to attend to your personal hygiene. All of those incidents were recorded.
You were referred to the Frankland Centre under the Mental Health Act 2014 (WA) on 27 October 2015, for assessment and treatment of your psychosis.
Dr P interviewed you on 2 November 2015, while you were an involuntary patient in the Frankland Centre. At that time Dr P described you as psychotic and at times thought-disordered, with illogical thinking and at times difficult to follow in your conversation. She said you became perplexed, as if responding to unseen or unheard stimuli, and you asked to leave the room. You did not appear to have any understanding of your circumstances or the court processes. It seems to me that this is in stark contrast to your appearance and behaviour during the police interview.
You were discharged from the Frankland Centre on 9 November 2015. On your return to Hakea Prison you again engaged in aggressive behaviour during November and December of 2015, incurring charges for wilfully damaging the cell toilet, a television and a cell window. You were also threatening and abusive towards prison officers and nurses. Your conduct resulted in a further referral to the Frankland Centre on 26 November 2015, but you returned to Hakea Prison on 8 December 2015.
When you were interviewed again by Dr P on 5 January 2016, this time at Hakea Prison, she described you as pleasant and cooperative. She said you gave good, appropriate eye contact, and rapport was easily established. She said you could not remember the previous interview at the Frankland Centre. Dr P said there was no evidence of agitation, distress or aggression. Your speech was of normal rate and volume and you were spontaneous and fluent. There was no evidence of formal thought disorder. You did not appear distracted and you did not appear to be responding to stimuli.
I note that the description given by Dr P on this occasion appears to correlate with your appearance and behaviour in the police interview.
During that second interview with Dr P, you denied having any current auditory or other hallucinations, but you were vague as to whether you had experienced them in the past. You said your mood was better. Dr P was of the opinion that you had limited fluctuating insight into your mental illness, and the benefits of the treatment you had received. She considered that your judgment was reasonable. You were alert and orientated and appeared to be cognitively grossly intact.
Dr P’s diagnosis, on both occasions that she saw you, was that you had suffered from a psychotic illness, most likely a ‘relapse of paranoid schizophrenia, secondary to cannabis use, erratic compliance with treatment and psychological stressors’. On the second occasion she considered you were in partial remission. Her further diagnosis on both occasions was that you had a mental and behavioural disorder due to alcohol and cannabis. She noted you were abstinent while in custody.
In her report of 9 November 2015, Dr P expressed the following opinion:
QGMJ has a psychotic illness, paranoid schizophrenia, chronic with an acute relapse of his illness, most likely in context of the stress of his marriage break-up, complicated by increased alcohol and cannabis use, and in my opinion, insufficient or no medication in the community. I believe that his mental illness was undertreated in the community more so given the increased stress of his relationship deteriorating.
In relation to his offences, I believe that due to his illness not being adequately treated, with his increasing use of cannabis to cope with his emotional problems, his judgment was most likely impaired at the time of committing the offences, due to his mental illness [35] - [36].
In her report of 21 January 2016, Dr P expressed the same opinions, except that in respect of the first phrase she said:
QGMJ has a psychotic illness, paranoid schizophrenia, chronic, with an acute relapse of his illness at the time of the offences ... [35].
It was not apparent from the first report that Dr P was suggesting that you had an acute relapse of your mental illness at the time of the offences, although she referred to the likelihood that your judgment was impaired. There is nothing in the second report, in my view, that explains the temporal connection of the acute relapse to the offences. There could be no doubt that when Dr P saw you, you were very unwell, but there appears to have been a deterioration of your condition after you were remanded in Hakea Prison.
Dr P has referred to the materials she considered. I note that she does not refer to the police video interview. It is perhaps surprising that she would not have watched the interview, as it depicts you at a time very close in time to when the offences were committed. Ms Z has submitted that I can place little weight on your demeanour in that interview. With respect, I disagree. Self-evidently the interview is not medical evidence, as Ms Z has submitted, but the assessment of your mental state at the time is not dependent solely on medical evidence. The difficulty is that we do not have a medical opinion concerning your condition during the interview, because Dr P has not considered it. My impression, as I have already pointed out, is that your presentation during that interview is entirely inconsistent with your presentation for Dr P’s first interview with you, but appears to correlate with the description she gives of your presentation during her second interview with you. During that second interview she considered that you were in remission.
Dr P’s expertise, of course, is not in doubt, and I am mindful of the need to give proper weight to an expert’s opinion, where it is not contradicted by other expert evidence, unless there is good reason to depart from it. The police video record of interview, which has not been viewed by Dr P, is an important piece of evidence that, in my view, provides good reason to question whether you had an acute relapse of your mental illness at the time of the offences.
Ms Z has submitted that the fact that you were diagnosed as being in the early stages of relapse of paranoid schizophrenia on 9 June 2015, and you then had a worsening of symptoms when you were assessed in prison in August 2015, means that the only reasonable inference is that you were likely to be materially affected by mental illness on 10 July 2015. With respect, the process of reasoning is flawed, in that it assumes a linear development of psychotic symptoms, when there is no evidence to support that as a general proposition, and it ignores evidence such as the medical note on 1 July 2015 that you had no psychotic symptoms at that time and your presentation on the police video interview.
The State’s concession that Dr P’s report confirms an acute relapse of your mental illness at the time of the offences and the concession of a causal connection between such a relapse and the commission of the offences appears to overlook the evidence I have referred to and the fact that Dr P did not view the video interview. Further, the State does not appear to have undertaken the kind of analysis that I have undertaken. I am not bound by the concession. I am not satisfied on the balance of probabilities that at the time of the offences you were suffering from an acute relapse of your mental illness.
However, I accept that your underlying organic illness, affected by your use of cannabis and alcohol may have reduced your inhibitions and impaired your judgment to some extent. It may also have caused you to feel paranoid about XY seeing other men and using your car, even though she says the car was not functional at that time.
The difficulty, however, is teasing out the extent to which your substance abuse is responsible for any such impairment or paranoia. Dr P described the relapse of your paranoid schizophrenia as being secondary to ‘cannabis use, erratic compliance and treatment and psychological stressors’. So, to the extent that your conduct has been affected by your paranoid schizophrenia, any relapse has been brought on by your cannabis use, in combination with other factors. Further, Dr P considers that you have a mental and behavioural disorder that is due to alcohol and cannabis use. So, the question arises whether any impairment of your judgment might have been due to that disorder. Again, your alcohol and cannabis use would appear to be the cause of any such impairment.
Ms Z has submitted that, as a matter of logic, mental illness can be a cause of substance misuse, due to impaired judgment; the substance misuse then aggravates the mental impairment and makes further substance use more likely. She has submitted that the reduction in moral culpability that attaches to impaired judgment due to mental illness should therefore extend to a reduction in moral culpability for the misuse of substances where there is an underlying mental illness, as in your case. Again, with respect, I do not consider the proposition to necessarily be a matter of logic or to be universal. It may be accepted that persons with mental illness will sometimes seek to self-medicate with alcohol or illicit substances, and their judgment may be impaired by their underlying condition in making those choices. However, it is necessary to consider the particular circumstances of the individual and the factors that have led to alcohol or illicit substance misuse. Otherwise it simply becomes a ‘bootstraps’ argument.
In your case I am not satisfied on the medical evidence that your substance misuse was attributable to your mental illness in a manner that would lessen your moral culpability. It is clear that you have been using cannabis for a long time, including at times when you have been free from symptoms of your mental illness.
The Tribunal also notes the submissions made by counsel for QGMJ before the Court of Appeal as follows:
R, MR:  Your Honour, I guess the key issue in this appeal is what is the sentencing significance of the appellant’s psychiatric illness. And it’s clear from the most recent - well, really all of the reports of Dr P that there was a strong causal relationship between the appellant’s psychiatric illness and the offending. And at paragraph 42, appeal book page 17, Dr P states that:
Regarding the relationship between QGMJ’s mental illness and the offence, I believe that they most likely occurred due to the underlying psychotic illness, in my view paranoid schizophrenia.
And she expressed the view that his condition wasn’t being adequately treated in the community. And the learned sentencing judge refers to some medical notes that were referred to in the course of the sentencing and that’s at appeal book page 17. And at round about line 25, one of the notes raises that the appellant had expressed concern about going to see his children while he wasn’t mentally stable and was concerned about doing irrational things.
So it is clear from the materials that the appellant before this incident occurred was - had identified that there was a potential risk to his family from his psychiatric state. The medical notes show that he had attended at the … clinic on a few different occasions prior to the incident in question. He went on 9 June 2015, 29 June 2015 and 1 July 2015. And when the learned sentencing judge was sentencing the appellant or in his sentencing reasons at page 77 of the appeal book, his Honour states:
I accept that you were not indifferent to your mental health needs. In other words, you were aware of the need to obtain treatment and you did seek treatment. However, that does not have particular significance as a mitigating factor because of my findings that your mental health does not substantially reduce your moral culpability.
And so the fact that the appellant was seeking to get appropriate treatment for his psychiatric illness, that he had identified a risk, in my submission is very significant mitigation for him and - - -
MAZZA JA:    In the sense that, as his Honour actually then went on to find, that you can have - well, the court can have some confidence that he will be compliant with treatment in the future. Is that the sense in which you’re putting it to us?
R, MR:           Yes, your Honour. That’s correct. It’s also it shows that he had some insight that he was becoming increasingly unwell and was seeking to do the right thing by obtaining the treatment he needed. But it’s also an indicator that when he’s well he has a positive approach to his treatment and addressing his mental health needs. Your Honours, the other significant issue if [sic] just what was the influence of cannabis and alcohol in relation to the offending.
And in Dr P’s report at appeal book page 14, paragraph 24, Dr P states that there was no obvious evidence of acute intoxication in the electronic record of interview. And the submission of the prosecutor at the time of the sentencing proceedings, which is at appeal book page 108 at the bottom of the page, the learned sentencing judge queries whether the use of those substances was something that had happened over a period of time, not necessarily immediately before the commission of the offence.
And the response to the prosecutor is, "Yes, over a period of time". And it seems that when the appellant was interviewed he admitted that he had had some beer prior to committing the offence, but he denied any drug usage. The learned sentencing judge identified that the appellant had a relatively minor and limited criminal history and also identified that he pleaded guilty at the earliest opportunity.

In relation to this issue, the Ministerial delegate found as follows:
Expectations of the Australian community
52.QGMJ says he thinks the Australian community will feel sad for him and miss him if he leaves Australia (Attachment G, p9).
53.I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or whether there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. QGMJ has breached this trust as he has been convicted of two offences involving reckless and irresponsible behaviour by him, which posed a high risk of serious harm to his ex-partner and children and which, despite them escaping physical harm, still caused serious psychological trauma to them.
54.While the community may have some sympathy for his psychological issues which contributed to the offending, given the serious nature of these offences, I conclude that the Australian community would expect that QGMJ should not hold a visa.
The Tribunal considers that the expectations of the Australian community are that a non-citizen, such as QGMJ, with a serious criminal record that includes crimes of violence against his former partner and minor children should expect to lose his visa and forfeit the privilege of remaining in Australia. While it is undoubtedly the case that the Australian community would feel much sympathy for QGMJ as a result of his significant mental health issues, any sympathy would be outweighed by the quite legitimate disapproval of the crimes he committed against his former partner and minor children – all of whom have suffered immeasurably and will probably continue to suffer for years to come.
The community’s expectations in this regard weigh heavily against the revocation of the decision to cancel QGMJ’s visa.
(iv)Other (secondary) considerations
Paragraph 14(1) of Direction No 65 provides:
14. Other considerations – revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Based on the evidence currently available, the other considerations that should be assessed by the Tribunal in the present case are those that relate to any non-refoulement obligations, the strength, nature and duration of QGMJ’s ties with Australia and the extent of impediments to him if he is removed from Australia. QGMJ’s mental health condition is particularly relevant in relation to both any non-refoulement obligation and the extent to which there are any impediments should he be removed from Australia.
International Non-Refoulement Obligations
Direction 65 requires the Tribunal to assess any existing non-refoulement obligations owed to QGMJ. It provides as follows:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
QGMJ has not previously had a visa refused or cancelled under section 501, 501A or 501B of the Migration Act. Nor is he subject to a section 48A bar as he has never had a Protection visa refused or cancelled. He is accordingly entitled to apply for a Protection visa.
Until recently, the Tribunal would have found that, because of his ability to apply for a Protection visa, the Tribunal was not required to assess any non-refoulement obligations owed to QGMJ. It was generally accepted that because Direction 65 specifically states that it is not necessary to determine a non-refoulement issue in circumstances where an applicant can apply for a Protection visa, the Tribunal would normally rely on any non-refoulement assessment being made by another body specifically charged with determining the validity of a Protection visa claim.
That position is now disputed, however, because of the recent decision of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (“BCR16”). Following BCR16 (now on appeal to the High Court) the Tribunal is required to assess any type of harm that might arise should QGMJ be deported to Kenya. This is so regardless of whether an applicant specifically frames his risk of harm as a non-refoulement issue.
Here, QGMJ makes three claims in relation to the harms he believes he will face if he is returned to Kenya:
1)QGMJ claims that he converted from Christianity to Islam. As a result, he claims, he fears for his life if he is required to return to Kenya. In evidence before the Tribunal, QGMJ noted that he feared harm from his uncles who live in the Mombasa area (a primarily Muslim part of Kenya). It is implicit in this argument that QGMJ identifies as a member of a “particular social group” in need to protection (ie, a Muslim male who has converted to Christianity);
2)QGMJ believes that, as a man who suffers from a serious mental health condition (paranoid schizophrenia), he will face systemic disability discrimination;
3)QGMJ believes that he will not receive appropriate medical treatment in Kenya and will, accordingly, face significant harm because of the nature of his mental illness when left untreated.
In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia's non-refoulement obligations.
Conversion to Christianity
The Tribunal can only rely on the evidence before it in assessing any risk of harm to QGMJ.
In relation to QGMJ’s claim that he will face violence in Kenya as a Christian convert, counsel for the Minister contended in supplementary written submissions:
1.The applicant has claimed that he is a Kenyan citizen who converted from Christianity to Islam [sic] and that he now fears for his life if he is required to return to Kenya. In evidence before the Tribunal, the applicant noted that he feared harm from his many uncles that lived in the Mombasa area (a primarily Muslim part of Kenya). The applicant gave evidence that his uncles did not live in any other area of Kenya and he acknowledged that Kenya was a predominantly Christian country.
16.… the applicant has not advanced any evidence of probative value in these proceedings to support a finding that he faces a real risk of harm in Kenya, beyond untested statements of the applicant.
The Tribunal has reviewed the available country information in relation to the situation that those who convert from Islam to Christianity face in Kenya. Relevantly, a recent report from the US Department of State, Diplomacy in Action (“International Religious Freedom report for 2015”) highlights that:
Muslim religious leaders and their families reportedly threatened with violence or death some individuals who converted from Islam to Christianity, particularly those of Somali ethnic origin. For example, one international Christian publication reported on August 3 that a former imam who converted from Islam to Christianity was abandoned by his family and beaten by members of the community, who also burned down his house and stole his cattle.
When asked about his concerns, QGMJ’s evidence was vague and less than convincing. No evidence was provided that he had, in fact, converted to Christianity in Australia. This evidence could have easily been provided by a pastor or prison chaplain or friend. It was not provided. The only letter of support (outlined above at paragraph 77) is from a friend dated 29 June 2017 that specifically refers to QGMJ volunteering at the mosque. There is no evidence anywhere that corroborates QGMJ’s claim that he is now a Christian. Nor was there any corroborative or detailed information provided that his family was actually aware of his conversion to Christianity or that they actually threatened to harm him. The only evidence available was a statement allegedly made by QGMJ’s father to him that warned him that he would be in danger. QGMJ was unable to detail when that conversation occurred, whether he had ever told anyone else about it or what, specifically, was said would happen to him if he returned to Kenya.
Overall, QGMJ’s evidence struck the Tribunal as effusive and lacking in credibility. On this basis, the Tribunal does not find that QGMJ will face harm in Kenya on the basis of his alleged conversion to Christianity.
Disability Discrimination and Provision of Mental Health Services and Medications
In relation to whether QGMJ will face social discrimination and harm in Kenya because of his mental health condition, counsel for the Minister contended as follows in supplementary written submissions:
20.In August 2015, the Kenyan Ministry of Health released the Kenyan Mental Health Policy 2015-2030. Despite this plan, the annexed Country Information shows that the availability of mental health services in Kenya is still limited.
21With respect to the question of whether the applicant would face persecution because of his mental health if he is returned to Kenya, the respondent submits that the law in Kenya prohibits discrimination against persons with physical or mental disabilities in employment, education, access to health care or the provision of other state services. Whilst the Country Information references the US Department of State’s ‘Country Report on Human Rights Practices 2016 - Kenya’, specifically noting that the Government of Kenya “did not effectively enforce these provisions”, a reading of the report provides further context to this qualification. In particular, the reference to the Government not enforcing these provisions related to both discrimination against people with mental and physical disabilities and the only examples of the Government's non-enforcement relates to a lack of disability access ramps on buildings. In light of this, little weight should be placed on the comments that the Government does not enforce the provisions in the context of mental health discrimination.
The Tribunal has reviewed the country information available in relation to discrimination faced by persons with mental health issues in Kenya. The Tribunal does not agree with counsel’s submission that discrimination does not exist in this context. The Tribunal notes, in particular, the following detailed overview of the situation faced by persons in Kenya with serious mental health conditions similar to those experienced by QGMJ:
Mental health facilities
Despite the launch of a new policy, information indicates that the mental health care system in Kenya is affected by staff shortages, poor health infrastructure and inadequate supplies of medication and funding. Broadly, according to figures from 2014, there is a severe shortage of mental health care specialists in Kenya, with only 54 psychiatrists (however, other sources put the number at 88) and 418 trained psychiatric nurses for a population of 44 million. Only 16 out of 47 counties have psychiatrists in the public sector, and none have psychologists. The country has 14 mental health hospitals with a bed capacity of between 15 and 25. Some reports indicate that Mathari Mental Hospital, which is in the capital Nairobi, is the only public referral hospital for people with a mental illness in Kenya. It has patients from across the country and doubles as a rehabilitation centre. However, other reports indicate that there are 13 other hospitals (which are not known about due to lack of awareness) including the Moi Teaching and Referral hospital, which can accommodate 70 patients.
In terms of access to medication, reports indicate that there are major challenges in sufficient access to essential medicines for mental health illnesses. There are five major supply chains for essential medicines in Kenya, including the public supply chain (which is managed by the Kenya Medical Supplies Authority (KEMSA)). Drug supplies also come from faith-based organisations, NGOs, donations and the private supply of wholesalers and retailers. Due to some recent changes introduced by KEMSA the distribution of essential medicines, including psychotropic medicines, has increased by 50 percent. However, according to John Munyu, chief executive of KEMSA:
Many barriers remain to access to essential medicines. He said the absence of a national program to oversee treatment guidelines and to standardize treatment leads to an array of different treatment policies throughout the country, and there is a significant “lack of adherence to treatment guidelines and policies.” Due to this lack of consistent treatment, individual counties have different procurement needs, so KEMSA loses the advantage of economy of scale. Munyu reported that health care workers, especially in local facilities, are not informed about the availability of new drugs or they resist adopting new drugs. Finally, he said a lack of accurate market data makes forecasting and quantifying supply needs difficult.
In addition to lack of resources, diagnosis of mental health disorders is low. According to a study from 2009, 42 percent of patients in the study had symptoms of mild and severe depression, however, only 4.1 percent of patients were diagnosed with a psychiatric disorder, suggesting that most psychiatric conditions go undiagnosed and unmanaged.
Furthermore, stigma associated with mental health issues is one of the biggest challenges to the provision of mental health services in Kenya. People are reluctant to seek psychiatric care because of the stigma associated with mental health. They do not want to be labelled and face stigmatisation in the community and the workplace. The consequences of stigma include ‘delay in diagnosis, lack of compliance with treatment, increased health care expenditures, and increased school and work absenteeism due to untreated mental conditions’. Furthermore, due to widespread stigma, health professionals may be deterred from working in the area, which further contributes to staff shortages in the area.
Finally, many people in Kenya view mental health issues as spiritual issues rather than medical issue and therefore, rather than seeking health care, turn to religious leaders or traditional leaders for a cure. Due to the low clinician to patient ratio in Kenya, particularly in mental health, many people turn to traditional healers, to whom they have easy access.
Are there any reports to suggest that people are subject to harm as a result of having a mental illness?
Reports indicate that due to staff shortages and under resourced facilities, people with mental health issues are neglected and do not receive adequate treatment.
For instance, Mathari Mental Hospital, the largest psychiatric hospital in Kenya, has been criticised for its inadequate treatment of patients. In February 2016, members of the Parliamentary Health Committee visited the Mathari Mental Hospital and were reportedly ‘shocked by the acute shortage of staff and overstretched facilities’. The facility does not have one clinical psychologist and there are also a shortage of specialist psychiatrists, medical social workers, pharmacists, occupational therapists, water and medication. For instance, one female nurse was responsible for caring for 146 patients. The hospital’s Medical Superintendent Julius Ogato, is quoted as stating that ‘the acute shortage of staff has hampered efficient and effective service delivery. The available staff who do not meet international ratios are overwhelmed by the work’.
Earlier reports, including a report by CNN in 2011, describe the abhorrent lack of care available for people with a mental illness. It quotes the Dr. [sic] Frank Njenga, the President of the African Association of Psychiatrists, as describing the scale of neglect and abuse towards people with a mental illness as ‘catastrophic’.
Furthermore, although the law prohibits discrimination against persons with physical or mental disabilities in employment, education, access to health care or the provision of other state services, the government has not effectively enforces these provisions. There are many laws that limit the rights of people with mental health disabilities. For example, the Marriage Act limits the rights of persons with mental disabilities to get married and the Mental Health Act allows guardians to make all decisions for persons ‘of unsound mind’.

In the circumstances, the Tribunal finds that that QGMJ risks facing harm if returned to Kenya because of his mental health condition. It is not disputed that QGMJ is a diagnosed paranoid schizophrenic whose health deteriorates rapidly without counseling and medication. On the evidence, neither will be readily available to him if he is deported to Kenya. This, in turn, places him at risk of harm – arguably even death given the consequences that flow from this mental disability if left untreated.
This finding weighs in favour of revoking the decision to cancel QGMJ’s visa. The question the Tribunal needs to ask, however, is whether this finding in relation to what is an “other” or secondary consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above. The Tribunal finds that it does not do so. The Tribunal has considerable sympathy for QGMJ and is quite concerned about his psychological safety should he return to Kenya – a country where, as noted above, the state of mental health care is described as “catastrophic”. The Tribunal needs to weigh these concerns, however, with the very strong concerns outlined above in relation to the seriousness of QGMJ’s crimes, the risk of further offending, what this would mean for his family and the Australian community and the safety concerns outlined in relation to his two minor children.
Noting that the primary considerations in Direction No 65 are normally given greater weight than the other considerations and in light of the evidence before it, the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 65 requires the Tribunal to consider QGMJ’s ties to Australia as follows:
14.2 Strength, nature and duration of ties
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Counsel for the Minister in a Statement of Facts, Issues and Contentions dated 22 May 2017 contended as follows:
Strength, nature and duration of ties
45.The applicant arrived in Australia in 2004. He was approximately 16 years of age at the time. Other than the applicant’s children (whom he is restrained from seeing), the applicant has not provided any evidence of any close relationships or family that are Australian citizens that would be affected by a decision not to revoke the cancellation. During his time in prison he has not had any visitors or made any phone calls and he notes that all of his family remain in Kenya.
It is also noted that the Ministerial delegate found as follows:
Strength, nature and duration of ties
56.QGMJ arrived in Australia as an Unaccompanied Minor Stowaway on 5 May 2004 aged 16 years; he has lived in Australia for 12 years eight months. QGMJ has resided in Australia for almost 13 years, having arrived as an Unaccompanied Minor Stowaway at 16 years. Given QGMJ has lived in Australia for from his adolescence and without the support of his family I hold the view that the Australian community may afford a somewhat higher tolerance of his criminal conduct.
57.I note QGMJ refers to having two aunts, one uncle, one nephew, and 10 cousins (Attachment G, p7) but the manner in which he provides this information makes it unclear if they are in Australia or Kenya. As no extended family are mentioned in Australia in any other information before me, his Corrective Services report states he has not been visited by anyone nor kept in contact with anyone (Attachment K, p2), he says his family will be sad if his visa cancellation decision is not revoked ‘as I will have no job to help them’. I am of the view that his extended family are in Kenya and he has no relatives in Australia other than his children.
58.QGMJ says he was a factory worker 2010-2011 and a labourer 2014-2015 (Attachment G, p9). He further advises he has worked as a gardener while imprisoned and volunteered to plant trees for Centrelink (Attachment G, p9).
59.QGMJ has spent four years contributing to the community by working. I find that QGMJ has been making a positive contribution for four years to the community and I have taken this into account. Given QGMJ’s significant mental health issues, I am of the view that the Australian community would afford him a higher tolerance with regard to the amount he has worked since he has reached adulthood.
As correctly noted above, QGMJ has lived in Australia since he was 16. On the evidence, he has been engaged in some employment and has, accordingly, been making some contribution to the community. He has two children here but has no contact with them. QGMJ clearly wants a relationship with his two children. It is unclear, however, whether he will ever get some sort of court ordered access to his children given his past criminal record and documented violent offending in relation to his children.
Overall, while the Tribunal finds that QGMJ does have ties to the Australian community, the Tribunal is not convinced on the balance that the nature and strength of his ties with Australia outweigh the primary considerations analysed above.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 65 requires the Tribunal to consider the extent of any impediments if QGMJ is removed from Australia as follows:
14.5 Extent of impediments if removed
(1)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.
In relation to this issue, counsel for the Minister contended as follows:
49.The applicant is currently 29 years of age and up until the age of 16 he lived in Kenya. The applicant’s immediate family all live in Kenya. He would have no language impediments if removed.
50.The respondent contends that this factor weighs in favour of the Tribunal affirming the decision under review.
It is also noted that the Ministerial delegate found as follows:
60.I have had regard to the impediments that QGMJ will face if removed from Australia to his home country in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of Kenya.
61.As outlined above, QGMJ appears to have a number of relatives living in Kenya. He states if his visa cancellation decision is not revoked ‘they will be sad as I will have no job to help them’ (Attachment G. p7). I am of the view that this suggests QGMJ has an ongoing relationship with his extended family and therefore support if he returns to Kenya. I also note that he advises he has converted to Christianity and his family and community in Kenya would be ‘very offended’, which will cause him ‘grave troubles’ (Attachment G, p 10). I note QGMJ is not prevented from applying for a Protection Visa.
62.As previously outlined, QGMJ has paranoid schizophrenia, receives medication and treatment for the same, and significantly deteriorates when not medicated and supported in the community. While QGMJ would be eligible for mental health treatment and services commensurate with other people in a comparable situation in Kenya, I find it is possible QGMJ will not be adequately followed up by mental health services and this could lead to a serious deterioration in his mental health if he is returned to his home country.
As discussed above at paragraphs 102 to 106 in relation to QGMJ’s mental health condition and any non-refoulement obligations that arise as a result of the potential for harm if QGMJ is returned to Kenya, the Tribunal finds that QGMJ will face significant impediments in relation to his health and safety if returned to Kenya. The Tribunal’s findings in that regard are repeated here.
Although this finding weighs in favour of revoking the decision to cancel QGMJ’s visa, for the same reasons outlined above in relation to Australia non-refoulement obligations, the Tribunal does not find that this consideration outweighs the primary considerations outlined above.
CONCLUSION
This is a most unfortunate matter. The Tribunal is, in effect, asked to determine whether a man with significant mental health issues should be returned to a country where, on the evidence, his mental health will not be treated and where he will, as a result, be at considerable risk of harm. This, in turn, has to be weighed against extraordinary acts of violence committed by this man against his former partner and two minor children – all of whom are now essentially in hiding because of the violence they endured at the hands of their former partner and father – and the likelihood that he will reoffend again if released into the Australian community.
QGMJ arrived in Australia from Kenya as a minor stowaway in 2004. He has been convicted of nine criminal offences since 2006. In 2015, he was charged with and found guilty of serious offences in the Supreme Court of Western Australia. QGMJ’s victims were his former partner and two minor children. He was incarcerated for 2 years in Acacia Prison for these offences. The sentencing judge described QGMJ’s actions as serious, noting that what he did terrified and traumatised his former partner and children and highlighting the enormous damage to their lives as a result of his actions.
Having received a sentence of a term of imprisonment in excess of 12 months, QGMJ has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act. Further, as QGMJ was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act. His visa was mandatorily cancelled and he was detained at Yongah Hill Immigration Detention Centre.
In determining whether there is any reason why the decision to cancel QGMJ’s visa should be revoked, the Tribunal has attached significant weight to the fact that QGMJ’s offending is very serious in nature. The commission of his most recent crimes has had a devastating impact on the lives of his former partner and two young children. This must, objectively, be viewed very seriously.
In this regard, the Tribunal has taken account of the following factor detailed in paragraph 13.1.1 of Direction No. 65:
a)the principle that violent offences are viewed very seriously – noting that QGMJ’s crimes include acts of violence against his former partner and their two minor children;
b)the principle that crimes committed against vulnerable members of the community are serious – noting that QGMJ’s crimes were committed against his minor children;
c)the sentence imposed by the courts for crimes – noting that in QGMJ’s case a lengthy custodial sentence of two years was ordered despite his early guilty plea and despite the fact that he had serious mental health and addiction issues;
d)any trend of increasing seriousness – noting that QGMJ’s crimes have indeed increased in seriousness since 2006.
In these circumstances, QGMJ should, as per paragraph 6.1 of Direction No. 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that QGMJ may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should QGMJ engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account the evidence on the risk of QGMJ re-offending.
QGMJ suffers from a very serious mental health condition that does not appear to have been well managed in the past. On the evidence, this mental health condition is made worse when he uses illicit drugs and when he consumes excessive amounts of alcohol – both of which he has done in the past and both of which resulted in a mental health breakdown that resulted in him terrorising his ex-partner and his young children.
QGMJ has expressed considerable remorse for his past conduct. He also now admits the needs medical intervention and that he will never tackle his mental health condition if he does not seek and receive medical attention and undertake extensive therapeutic rehabilitation for drug and alcohol dependency – both of which trigger mental health deterioration. It is also clear that QGMJ has sought out and received some, albeit limited, medical and therapeutic treatment while in prison. Unfortunately, the Tribunal still has concerns about the effectiveness of these limited rehabilitation programs for QGMJ in circumstances where he has neither completed them or had the opportunity to demonstrate any meaningful rehabilitation outside of a supervised environment in prison. The Tribunal is also concerned that QGMJ ceased to take his medication when in detention, even though medical assistance was available to him. This reflects an inconsistency in his own approach to his much needed medical treatment.
Like the Minister’s delegate before it, in considering whether QGMJ represents an unacceptable risk of harm to the Australian community, the Tribunal has had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It is further noted that some conduct and harm that would be caused if it were to be repeated is so serious that any risk that it is repeated may be unacceptable. Further, in making an assessment regarding the risk to the Australian community, the Tribunal has had regard to, cumulatively:
c)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
d)the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending.
On the evidence, QGMJ has not taken sufficient steps towards rehabilitation and medical treatment to satisfy the Tribunal that he no longer poses a risk to the Australian community.
The Tribunal also finds that is not in the best interests of QGMJ’s minor children for the decision to cancel his visa to be revoked. The Tribunal has found that QGMJ will continue to pose a safety risk if he is returned to the community because of his failure to address his mental health issues and the addictions that effect his long term mental health management. QGMJ no longer has contact with his children. Indeed, his children and former partner are, in effect, in hiding so that they avoid his violent behaviour. In these circumstances, it is unlikely QGMJ will play a positive role in the lives of his children. Indeed, there is a real risk that any future contact will only worsen the effects of his past behaviour on his already traumatised and vulnerable children.
The Tribunal finds that the protection of the Australian community is also a consideration that weighs in favour of refusing to revoke the mandatory cancellation of QGMJ’s visa. Given the quite serious nature of the crimes committed by QGMJ and the very real prospect of future serious criminal offending, the Tribunal is also of the view that the Australian community would expect that QGMJ’s visa would remain cancelled. While it is undoubtedly the case that the Australian community would feel much sympathy for QGMJ in relation to his mental health issues, any such sympathy would be outweighed by the quite legitimate disapproval for the crimes he committed against his former partner and minor children.
There are considerations that weigh in favour of revocation of the decision to cancel QGMJ’s visa. These include concerns in relation to Australia’s non-refoulement obligations. The Tribunal finds that that QGMJ will face harm if returned to Kenya because of his mental health condition. It is not disputed that he is a diagnosed schizophrenic whose health deteriorates rapidly without counseling and medication. On the evidence, neither will be readily available to him if he is deported to Kenya. This, in turn, places him at risk of physical harm.
The Tribunal also finds that QGMJ has ties to the Australian community and, for the same reasons outlined in relation to his mental health, will face significant impediments if returned to Kenya.
These findings weigh in favour of revoking the decision to cancel QGMJ’s visa. The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of QGMJ’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 134 (one hundred and thirty four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

................[sgd]..................................
Administrative Assistant
Dated: 22 September 2017

Dates of hearing: 2 August 2017 and 13 September 2017

Representative of the Applicant: Self-represented

Representative of the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 1537

22 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies

Offence	Offence date	Sentence date	Sentence
Stealing	15.09.2006	11.10.2006	Adult CRO: 6 months, $250 undertaking
Carried an article with intent to injure (disable)	15.09.2006	11.10.2006	Adult CRO: 6 months, $250 undertaking
Possessing a prohibited drug (cannabis)	25.07.2010	31.08.2010	Adult CRO: 6 months, $500 undertaking
DUI – Excess 0.08g/100ml	19.06.2011	16.11.2011	$500 fine, disqualified from driving 4 months
Unauthorised driving by learner	19.06.2011	16.11.2011	$200 fine
Failed to reasonably ensure that fire/ignition source did/would not cause a fire that could not be controlled	10.07.2015	20.09.2016 (appeal)	On appeal: 2 years imprisonment (concurrent)
Aggravated burglary and commit offence in dwelling	10.07.2015	20.09.2016	On appeal: 2 years imprisonment (concurrent)

Dates of hearing:	2 August 2017 and 13 September 2017
Representative of the Applicant:	Self-represented
Representative of the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers