QGMJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2314

QGMJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2314 (7 June 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2017/0717

GENERAL DIVISION )
Re: QGMJ
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Deputy President Britten-Jones
  Member Ben-Tovim
DATE OF CORRIGENDUM:            18 July 2022
PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.Replace the word “we” in the phrase beginning “we give consideration to”, appearing in paragraph [28] of the decision, with the word “We”;
2.Replace the word “we” in the phrase beginning “we also have regard to”, appearing in paragraph [38] of the decision, with the word “We”;
3.Replace the word “we” in the phrase beginning “we accept that”, appearing in paragraph [50] of the decision, with the word “We”;
1
4.Replace the word “we” in the phrase beginning “we conclude that”, appearing in paragraph [56] of the decision, with the word “We”.

................................[SGD]...................................
Deputy President

Division:GENERAL DIVISION
File Number(s): 2017/0717
Re:QGMJ
APPLICANT

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

DECISION
Tribunal:Deputy President Britten-Jones
Member Ben-Tovim
Date:7 June 2022
Place:Melbourne

The decision of the Tribunal is to set aside the decision under review and substitute a decision revoking the mandatory cancellation of the applicant’s visa made on 14 November 2016.
................................[SGD]........................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – serious offending involving domestic violence – whether discretion to revoke mandatory cancellation should be exercised – applicant suffers from schizophrenia and is owed non-refoulement obligations – serious risk of harm if returned to Kenya – the decision under review is set aside and substituted by a decision revoking the cancellation.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Home Affairs (2020) 380 ALR 393; [2020] FCAFC 109.
FAK19 and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (No 2) [2021] FCA 1571.
Hernandez v Minister for Home Affairs [2020] FCA 415.
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 244
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56.
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35.
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, [2014] FCA 303.
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55.
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
REASONS FOR DECISION
Deputy President Britten-Jones
Member Ben-Tovim
7 June 2022
INTRODUCTION

This hearing arises from orders made by the Federal Court on 2 May 2018 which set aside the decision of the Tribunal dated 22 September 2017 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 14 November 2016, the applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment. The applicant had been sentenced to 4 years imprisonment on 18 March 2016, but he had been in gaol from 10 July 2015. He appealed that decision and on 9 February 2017 the Court of Appeal (WA) allowed his appeal and reduced his sentence to 2 years imprisonment. On 9 July 2017, the applicant was transferred from gaol to detention where he remains.
The applicant sought revocation of the cancellation decision. On 24 January 2017, a delegate of the Minister (the Delegate) refused to revoke the cancellation decision pursuant to s 501CA (the non-revocation decision).
On 9 February 2017, the applicant applied to the Tribunal for review of the non-revocation decision. On 22 September 2017, the Tribunal affirmed the non-revocation decision.
On 2 May 2018, Colvin J in the Federal Court made orders setting aside the Tribunal’s decision and remitting the matter to the Tribunal for determination according to law.
There then followed numerous interlocutory hearings before the Tribunal because there was an issue with respect to the mental capacity of the applicant who had been diagnosed with paranoid schizophrenia in about 2008. Dr Jillian Spencer, the Mental Health Medical Director at International Health and Medical Services attended upon the applicant in 2020 and wrote a report on 18 February 2021 with respect to his capacity and recommending that a litigation guardian be appointed. The Victorian Public Advocate became involved and made an application to the Victorian Civil and Administrative Tribunal (VCAT). Victorian Legal Aid (VLA), who had been acting for the applicant, attended on behalf of the applicant at a VCAT hearing on 29 June 2021. The Victorian Public Advocate withdrew the guardianship application after hearing submissions form VLA.
On 8 November 2021 the Tribunal directed the respondent to liaise with Dr Leon Turnbull for the purpose of Dr Turnbull conducting a psychiatric assessment of the applicant’s capacity to participate effectively in a Tribunal Hearing. Dr Turnbull provided a report on 25 November 2021 expressing his opinion that the applicant did not have capacity to participate in matters in the Tribunal without a litigation guardian. Dr Turnbull then provided a supplementary report dated 17 December 2021 opining that the applicant cannot give oral evidence and confirming his opinion that the applicant lacked decision making capacity in relation to matters before the Tribunal.
Further directions hearings were held to which the applicant was invited but he refused to attend. On 23 December 2021 the Tribunal directed the respondent to liaise with the Victorian Public Advocate for the purpose of deciding whether to make another application for a guardianship order. By letter dated 12 January 2022 the Victorian Public Advocate declined to make another application to VCAT noting that the applicant “continues to be assisted by a duly qualified solicitor who is a specialist in immigration law” and that “VLA maintains the belief that the appointment of a guardian will not necessarily be of any added benefit or make a positive difference to his situation as it now stands before the AAT.” The letter concluded:
In the circumstances, the continued assistance from VLA appear to be a less restrictive means of ensuring [the applicant]’s human rights under the Charter of Human Rights and Responsibilities Act 2006 are sufficiently protected.
The reference to the qualified solicitor from VLA is a reference to Ms Hannah Dickinson who is now employed by the Asylum Seeker Resource Centre. Ms Dickinson has had a long involvement with this matter for the applicant and has attended most directions hearings. There were further directions hearings on 24 January, 24 February and 21 March 2022 by which stage the Tribunal had been become increasingly concerned about the delay in hearing the remittal[2] and that the applicant had been in detention since July 2017 during which his mental health appeared to have deteriorated. On 23 March 2022, after hearing from Ms Dickinson and counsel for the respondent, the Tribunal listed the matter for hearing on 6 April 2022.
[2] FAK19 and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (No 2) [2021] FCA 1571.
At the hearing before the Tribunal, Ms Dickinson was the instructing solicitor to counsel acting as amicus or, as expressed by the Minister, a contradictor. The Tribunal thanks Ms Dickinson and her counsel for their assistance. The applicant was invited to attend the hearing, but he did not. The hearing proceeded in the absence of the applicant but oral submissions were made by counsel on his behalf. There was no objection by the respondent to this course. The applicant’s statement of facts, issues and contentions at [55] to [56] filed by VLA on 15 February 2021 submitted that the circumstances of this case mean that it can be properly decided in the applicant’s favour without a hearing: that is, on the papers but that the matter needs to be finalised quickly.
The Tribunal had before it the written statement of the applicant from 30 June 2017 together with the transcript from the first Tribunal hearing on 2 August and 13 September 2017 when the applicant gave evidence and was cross examined. The Tribunal was also assisted by the Applicant’s Statement of Facts, Issues and Contentions dated 15 February 2021 and the Further Statement of Facts, Issues and Contentions dated 2 April 2022 provided by the Asylum Seeker Resource Centre in response to the Respondent’s Further Amended Statement of Facts, Issues and Contentions dated 18 March 2022.
LEGISLATIVE FRAMEWORK
Under s 501(3A), 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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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 a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[3]
[3] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Sections 197C and s 198 are also relevant:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has      been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
(4) For the purposes of subsection (3), a protection finding is made for a non‑citizen with respect to a country if a record was made in relation to the non‑citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):
(a) the non‑citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
(b) the non‑citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
   (c) the non‑citizen:
(i) would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non‑citizen;
(ii) satisfied the criterion in subsection 36(1C);
(d) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a);
(e) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the         country but did not satisfy the criterion in subsection 36(1C); and
(ii)   would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non‑citizen;
(f) the non‑citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non‑citizen.
(6) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if:
(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non‑citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
(b) a protection finding within the meaning of subsection (4) or (5) was made for the non‑citizen with respect to another country.
(7) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country in circumstances prescribed by the regulations.
(7A) For the purposes of subsection (3), if an unlawful non‑citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
(8) For the purposes of subsection (5), it is irrelevant whether or not the non‑citizen satisfied any other criteria for the grant of a protection visa.
(9) For the purposes of subparagraph (3)(c)(iii), a non‑citizen who withdraws their written request to be removed to a country is taken not to have made that request.
198 Removal from Australia of unlawful non‑citizens
Removal on request
(1) An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[4] As previously stated, the Tribunal was provided with statements of facts, issues and contentions from the respondent on 18 March and from the applicant on 2 April 2022. It was submitted on behalf of the applicant that the Tribunal should set aside the non-revocation decision and substitute an order revoking the cancellation decision.
[4] Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 at [38]; [2016] FCA 1166.
The applicant does not pass the character test. The only issue for the Tribunal is whether there is another reason to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[5]
[5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

In making a decision under s 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(i)international non-refoulement obligations;
(ii)extent of impediments if removed;
(iii)impact on victims;
(iv)links to the Australian community, including:
a)strength, nature and duration of ties to Australia;
b)impact on Australian business interests
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6]
[6] Direction 90 at 7.
When determining whether there is ‘another reason’ for revoking the cancellation decision we must consider the representations made by the applicant. In this regard, the High Court said in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22]:
Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision‑maker to revoke a decision to cancel a visa held by a non‑citizen if satisfied that there is "another reason" why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is "another reason" for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is "another reason" for revoking a cancellation decision, the decision‑maker undertakes the assessment by reference to the case made by the former visa holder by their representations. (footnotes removed)
THE CRIMINAL CONDUCT
The Applicant was convicted of the following offences:

Offence

Offence date

Sentence date

Sentence

Stealing

15.09.2006

11.10.2006

Conditional Release Order for 6 months with a $250 undertaking

Carried an article with intent to injure (disable)

15.09.2006

11.10.2006

Conditional Release Order for 6 months with a $250 undertaking

Possessing a prohibited drug (cannabis)

25.07.2010

31.08.2010

Conditional Release Order for 5 months with a $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)

Engaged in conduct without consent causing harm to Commonwealth Public Official (2 offences)

12.11.2019

13.12.2019

6 months imprisonment to be released after 3 months

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.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, we have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. We give consideration to:
1. the nature and seriousness of the non-citizen’s conduct to date; and
2. the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90
The applicant’s offences from 2006 to 2011 are relatively minor in nature, involving drug possession, theft and driving offences.
In March 2016, the applicant pleaded guilty to 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. On appeal, his sentence was reduced to two years imprisonment on each charge, to be served concurrently.
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.
In relation to the burglary charge, Fiannaca J noted:
While we 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. …
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. we 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.
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.
We take into account that, as found by the Court of Appeal, the applicant had suffered an acute relapse of his mental illness at the time of the offending and that there was a causal connection between the relapse and his offending. This was also noted by the forensic psychiatrist, Dr Turnbull, who opined that the applicant’s offending was intertwined with or a direct product of his mental illness.[7] This reduces his moral culpability with respect to that offending and is a relevant factor when considering the nature and seriousness of his offending. However, Direction 90 at 8.1.1(1)(a) is clear that crimes of a violent nature against women and children must be viewed very seriously regardless of the sentence imposed and we hold that view.
[7] Exhibit 5, Respondent’s Additional Tender Bundle ATB3 Psychiatric Report of Dr Turnbull dated 8 December 2021.
The offences of family violence involved his partner and young children and it was terrifying for them. These types of crimes are viewed very seriously by the Australian Government and community.
In addition to the family violence, the applicant pleaded guilty and was convicted in the Perth Magistrates Court of causing harm to two detainee services officers whilst in the Yongah Hill Immigration Detention Centre in November 2019. The seriousness of this offending is reflected in the imposition of a custodial sentence of 6 months (to be released after three months). Crimes against government officials doing their duty are considered serious by the Australian government and community. It is of significant concern that the applicant continued his criminal behaviour after being released from prison and whilst in detention. His mental health appears to have been a factor in this offending based on an IHMS report that he ‘was experiencing persecutory ideation which led to the assault.’[8]
[8] Exhibit 3, Respondent’s Tender Bundle at TB16.
The respondent sought to rely upon numerous incident reports of behaviour in immigration detention which were not the subject of convictions. These reports detail often aggressive and abusive behaviour to officials and other detainees resulting in altercations and damage to property. The authors of these incident reports were not called to give evidence. Further, in the circumstances of the applicant not giving evidence at this hearing and not being able to respond to those more recent allegations we give those incidents limited weight. However, we remain of the view that the cumulative effect of the applicant’s conduct involving family violence and harm to public officials together with the incidents in detention is extremely serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, we have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.[9] We also 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:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[9] Direction 90 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[10] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[10] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be serious because it involved family violence and violence against government officials carrying out their duties. This conduct has the potential to cause serious physical and psychological harm. The psychological suffering of victims of family violence, in particular children, renders the nature of the harm very serious with long lasting effects.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant contends that the likelihood of further criminal or serious conduct is minimised by numerous factors including that he is older and has gained insight into his schizophrenia and his past offending, he is drug and alcohol free, his compliance with his medical treatment, he has undertaken rehabilitative courses, the deterring effect of detention and the supports available in the community.
In his response to a request from the National Character Consideration Centre in the Department of Immigration and Border Protection on 16 January 2017, the applicant wrote that he was not properly medicated at the time of his offences and that he has been diagnosed with schizophrenia and is now fully aware of what is going on.[11]
[11] Exhibit 1, T documents, p 37.
The applicant pleaded guilty to the offences committed on 10 July 2015. The sentencing Judge considered that the applicant showed genuine remorse which had been expressed soon after his offending when he wanted to apologise to his former partner and children. The sentencing Judge stated to the applicant:
you should be given the opportunity for release on parole. Clearly you require a degree of supervision and assistance within the community, and you should be given the opportunity to re-integrate into the community.
On 30 June 2017 the applicant submitted a letter[12] to the Tribunal in which he expresses remorse and takes full responsibility for his offending but explains that at the time of offending he was not properly medicated. He also refers to the ‘devastating impact’ on himself of being in custody and that he has had time to reflect on his past behaviour which he says was terribly wrong and out of character.
[12] Exhibit 7, statement of the applicant timestamped 30 June 2017.
At the previous Tribunal hearing on 13 September 2017, the applicant said that prison had changed him a lot and that he wanted a second chance so that he could take care of his family.[13] He said that he had engaged in but not completed a drug and alcohol program but that he was willing to do so. He also admitted to the previous Tribunal that he had a problem with marijuana but said he wanted to rehabilitate himself and quit drugs so he could see his children.[14]
[13] Exhibit 4, Respondent’s Tender Bundle, TB33 transcript of hearing on 13 September 2017, p 43.
[14] Exhibit 4, Respondent’s Tender Bundle, TB33 transcript of hearing on 13 September 2017, p 40.
We consider that the applicant’s earlier expressions of remorse and statement that he had changed should be given less weight because of his more recent offending whilst in detention, but his conduct as a whole needs still to be considered in the context of his schizophrenia and his stated desire to not re-offend and to rehabilitate himself.
We note that the ‘evidence of rehabilitation achieved’[15] is limited because the applicant has not successfully completed an appropriate drug and alcohol program. Further, there is evidence of non-compliance with his prescribed anti-psychotic medication. This evidence comes from IHMS records from 2017 to 2021 including reports from psychiatrists. There are numerous reports that whilst in detention he has refused his medication and become aggressive and erratic. He was admitted to the mental health unit of the Northern Hospital in February 2020 and again in March 2020. The later admission was due to throwing a television remote control at a television, spitting repeatedly on the floor, flushing bread rolls down the toilet and responding to internal stimuli. An IHMS Psychiatrist reported on 7 October 2021 that he had poor insight into his schizophrenia and was non-compliant with his medication.
[15] Direction 90 at 8.1.2(2)(b)(ii).
The applicant refers to the numerous mental health and support services that are available in the community.[16] These services are particularly important in this case because without proper medical attention and support it is likely that his condition will deteriorate and therefore increase the risk of further offending and harm to the community. The Asylum Seeker Resource Centre has provided a letter[17] dated 3 April 2022 advising of the support options available to the applicant. These include assisting him with referrals and providing him with a support plan through what is known as the New Presentation Program. The letter says ‘We will do everything possible to assist him.’
[16] Applicant’s Statement of Facts, Issues and Contentions dated 15 February 2021 at [119].
[17] Exhibit 9, Asylum Seeker Resource Centre, New Presentation Program letter of Support dated 3 April 2022.
When assessing the likelihood of re-offending it is necessary to assess the likelihood of the applicant engaging with these services. The respondent contends that whether or not these services will result in a mitigation of the applicant’s risk of re-offending is presently speculative and that there is insufficient evidence for the Tribunal to be satisfied that he will seek to attain such supports in the community. There is some force in this submission particularly where there is evidence of refusing to take his anti-psychotic medication and limited evidence of actual rehabilitation. These factors suggest an increased risk that he will not engage.
The applicant has said that he would engage with further rehabilitative programs and that he would do whatever it takes with respect to medication.[18] There is evidence from Dr Spencer that the applicant has been accepting regular treatment over the past year. We accept that the applicant has expressed positive intentions and has been more compliant with his medication recently, but there remains a real risk that he will not engage with the available support services and will relapse when released into the community outside of the structured life of detention.
[18] Exhibit 4, Respondent’s Tender Bundle, TB33 transcript of hearing on 2 August 2017, p 13.
We take into account a letter of support dated 29 June 2017 from a friend within the local African community in Perth. The friend refers to the applicant’s love of his two daughters and says that he has made mistakes but should be given another chance. We note that in 2008 there was significant support from over 250 people who pledged their support for the applicant and requested that he be granted permission to stay in Australia.[19] In particular, there was significant support offered by the Christian community in Western Australia including the Uniting Church which we infer would still be forthcoming. Following the expression of that support, the Minister for Immigration and Citizenship decided to exercise his discretionary powers under s 417(1) of the Migration Act to allow the applicant to remain in Australia.[20] We infer from the letter and the earlier pledged support that the applicant would receive significant support if he were released into the community. This support would decrease the chances of him re-offending.
[19] Exhibit 8, Applicant’s bundle, pages 253 to 320.
[20] Exhibit 8, Applicant’s bundle at p 320.
Conclusion as to protection of the Australian community – 8.1 of Direction 90
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[21] The applicant has committed serious crimes including domestic violence offences. The applicant accepts that the offending is very serious because the victims included his former partner and their children.[22] The nature of the harm of any re-offending is very serious. Whilst we accept that the applicant has a desire to rehabilitate himself, he has not yet completed that process. His period of sobriety whilst in prison and detention is a positive factor, but there remains a risk that he will relapse particularly if he does not engage with the appropriate drug and alcohol rehabilitation services. There is also a significant risk that he will not engage with the necessary medical services such that his mental health may deteriorate resulting in an increased chance of further offending. It follows that the Australian community faces a significant risk of harm if the cancellation decision is revoked. Our conclusion as to the protection of the Australian community is that it is a factor that weighs very significantly against revoking the cancellation decision.
[21] Direction 90 at 8.1(1).
[22] Applicant’s Statement of Facts, Issues and Contentions dated 15 February 2021 at [92].
Family Violence – 8.2 of Direction 90

The Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence. The applicant’s conduct in setting fire to the car at his partner’s home put at risk the life of his partner and his two young daughters. Further, he broke into the home causing significant damage and then took hold of the eldest child and, despite the partner’s pleas, and took the child downstairs before a neighbour intervened. This violent and threatening behaviour would have been terrifying for the children and his partner. We note that a restraining order, in place until 18 December 2022, prohibits him from approaching within 100 metres of his children and 25 metres of his partner.
This is a factor that weighs heavily in favour of not revoking the cancellation decision.
Best interests of minor children – 8.3 of Direction 90
We must determine whether non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that we must consider and are relevant to this application include:
(a)The nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has two daughters aged 11 and 12. The applicant has not been in the community since July 2015 and has therefore been absent from his children for much of their lives. He put their lives at risk and caused real terror by setting alight the partner’s car, breaking into the house and taking hold of the eldest daughter. There is a risk that he will re-offend and therefore a risk of further harm to the children. There are doubts as to the extent that he would play a positive parental role in the future, noting that in any event he is restrained from any meaningful contact with his children until 18 December 2022. Despite these negative factors, there would likely be some benefit to the children if their father was released. In his request for revocation, the applicant said that one of his daughters has medical issues and that he could help her if released. He said that he had been with his children since they were little ‘but messed it all up when we came to prison.’ We conclude that the best interests of the children would be served by revoking the cancellation decision, but we give it little weight due to the family violence and because he has been away from the children for much of their lives.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[23]
[23] Direction 90 at 8.4(1).
In addition, non-revocation may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not be granted a visa. Of particular relevance in this case, the Australian community expects that the Australian government should cancel a visa if there are serious character concerns through acts of family violence, crimes against women and children or crimes against government officials in the performance of their duties[24]
[24] Direction 90 at 8.4(2).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, we must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case.
The applicant has engaged in serious conduct in breach of the Australian community’s expectation that non-citizens obey the law. The conduct involved family violence, a crime against women and children and a crime against Government officials. This is a factor that weighs heavily against revoking the cancellation decision.
Other Considerations
In deciding whether to revoke the cancellation of the applicant’s visa, we must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[25] We must also consider the consequences that would flow from not revoking the cancellation decision.[26]
[25] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[26] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if returned to Kenya. We are required to read, identify, understand and evaluate each of these representations.[27]
[27] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [9].
We note that the risks of harm that the applicant will face if removed are also relevant to international non-refoulement obligations and the extent of impediments if removed.
International non-refoulement obligations – 9.1 of Direction 90
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.[28]
[28] Direction 90 at 9.1(1).
In Ali v Minister for Home Affairs,[29] the Full Court said with respect to Australia’s non-refoulement obligations:
[29] (2020) 380 ALR 393; [2020] FCAFC 109.
[23] Although the concept of non-refoulement is not defined in the Act, s 5 contains a definition of “non-refoulement obligations” in the following terms:
non-refoulement obligations includes, but is not limited to:
(a)non-refoulement obligations that may arise because Australia is a party to:
i.the Refugees Convention; or
ii.the Covenant [being the International Covenant on Civil and Political Rights]; or
iii.the Convention Against Torture; and
(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
[24] The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100]–[113]. In summary and relevantly for the purposes of this matter:
(a)The term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:
Article 33
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
As a person with a mental illness, the applicant will be at risk of harm if returned to Kenya. Human Rights Watch has found evidence of persons with psychosocial and intellectual disabilities being shackled with chains in Kenya.[30] The article from Human Rights Watch provides a specific report dated February 2020 of a man with a psychosocial disability being chained for five years.[31] The respondent does not dispute that being shackled or chained may constitute serious or significant harm of a kind with which Australia’s non-refoulement obligations are owed but says that the real question is whether there is a real risk that the applicant will be exposed to such practices. Based on the report from Human Rights Watch, we find that there is a real risk of the applicant’s freedom being threatened by being exposed to shackling.
[30] Exhibit 8, Applicant’s Bundle of Documents, Human Rights Watch “Living in Chains” October 2020.
[31] Exhibit 8, Applicant’s Bundle of Documents, Human Rights Watch “Living in Chains” October 2020 at pages 3 and 7.
Further, country information relied upon by the Tribunal in its decision of 22 September 2017 at [103] remains relevant:[32]
[32] This country information is an extract from exhibit 2, the Respondent’s Tender Bundle TB22 at pages 644 to 646.
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.
2. 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’.
It is apparent from the above country information that the applicant would face a significant risk of harm if returned to Kenya because of his mental health condition. The applicant is a diagnosed schizophrenic whose health deteriorates rapidly without counselling and medication. On the evidence, neither will be readily available to him if he is returned 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 is a factor that weighs heavily in favour of revoking the cancellation decision.
We do not accept the respondent’s submission that health services in Kenya have improved to the point that there is no real chance that the applicant would be exposed to serious harm.[33]
[33] Applicant’s Statement of Facts, Issues and Contentions dated 2 April 2022 at [90] to [95].
In these circumstances, if the applicant were returned to Kenya, Australia would be in breach of its non-refoulement obligations.
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision. We consider that this is a factor which weighs in favour of revoking the cancellation decision.[34]
[34] Ali v Minister for Home Affairs [2020] FCAFC 109 at [90]; and Hernandez v Minister for Home Affairs [2020] FCA 415 at [63].
Irrespective of whether non-refoulement obligations are owed, the significant risk of harm if the applicant is returned to Kenya is a factor that weighs heavily in favour of revoking the cancellation decision.
The applicant’s request to return to Kenya
In May 2020, the applicant made a written request to be returned to Kenya.
An IHMS record[35] dated 25 May 2020 states that the applicant:
wants to return to Kenya, says this is because he is sick of being stuck in detention … He says he wants to go back to Kenya because he is frustrated with being locked up and wants his freedom.
[35] Exhibit 2, Respondent’s Tender Bundle, TB21 at p 345.
An IHMS progress note[36] dated 5 July 2021 records the applicant saying that ‘he is returning to S Africa” and “he wants to return to Western Australia, missing Western Australia”.
[36] Exhibit 4, Respondent’s Further Tender Bundle, TB31 at p 572.
At the hearing on 6 April 2022, counsel for the respondent advised that it had not yet been reasonably practicable to remove the applicant from Australia for various reasons since he made his written request for removal in May 2020. The Tribunal reserved its decision on that day.
On 16 May 2022, the applicant signed an Australian Border Force document entitled Request For Removal From Australia which requests removal to Kenya in accordance with s 198(1) of the Act.
Given that Dr Turnbull expressed his opinion in December 2021 that the applicant lacked decision making capacity in relation to matters before the Tribunal, the Tribunal has concerns about the applicant’s capacity to give instructions for him to be removed. Whilst these reasons were being written, the Tribunal was advised by Ms Dickinson of the Asylum Seeker Resource Centre that the Victorian Civil and Administrative Tribunal had made a guardianship order this day (7 June 2022) and that further details would be provided.
Legal consequences of a non-revocation decision
We now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa,[37] bearing in mind our determination that the applicant is a person to whom non-refoulement obligations are owed.
[37] See Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.
The respondent acknowledges that by reason of the refusal to grant the applicant a protection visa on 7 December 2004, the applicant is barred from applying for a further protection visa by operation of s 48A of the Migration Act.
Some guidance as to consequences of a decision is provided by the recent Full Court of the Federal Court decision in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 (WKMZ).
WKMZ referred to three possibilities if the visa cancellation is not revoked – removal, indefinite detention and the prospect that the applicant might be granted a visa.[38] We find below that there is no realistic prospect the applicant would be granted another visa,[39] so we will focus on the prospect of indefinite detention and removal to Kenya.
[38] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [97].
[39] See MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [73]
The Consequence of Removal

The applicant contends if we do not revoke the cancellation decision that the applicant is liable to be removed to Kenya and we should place significant weight on this consequence. The respondent accepts that removal to Kenya is the likely consequence if we do not revoke the cancellation decision. Counsel for the respondent said that irrespective of whether non-refoulement obligations were owed, the applicant will be removed to Kenya if the decision is affirmed.
We refer to ss 197C and 198 which we set out in full earlier in our reasons.
We now consider Direction 90 in the context of determining what will be the consequences of not revoking the cancellation decision. Direction 90 at 9.1(2) and 9.1(3) states:
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful noncitizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the noncitizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the noncitizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
Paragraph 9.1(2) of Direction 90 provides that we must be mindful that, irrespective of a non-refoulement obligation, the applicant (if the cancellation decision is not revoked) is an unlawful non-citizen liable to removal as soon as it is reasonably practicable. This would suggest a very significant and detrimental consequence for the applicant which would weigh heavily in favour of revoking the cancellation decision.
However, paragraph 9.1(3) provides a qualification to the significance of that consequence. It appears to downplay the consequence by saying that a non-revocation decision will ‘not necessarily’ result in removal because consideration may be given to removal to another country or the Minister may exercise a personal discretion in favour of the applicant. Further, there is a reference to the non-citizen applying for a protection visa but in this case, as previously stated, the applicant is barred from making such an application. This suggests that, because of the possibility of removal to a third country or a positive exercise of a discretion by the Minister, the significance of the consequence is diminished and therefore less weight should be given to it. Of course, these alternative outcomes will ‘not necessarily’ occur. We are required to consider the evidence before us.
There was no evidence before us that consideration had been given to removal to another country, nor is there any realistic prospect that the Minister would exercise a personal discretion in favour of the applicant in circumstances where the applicant’s visa has been cancelled and the respondent contends that there is an unacceptable risk to the Australian community that the applicant will engage in serious criminal conduct in the future.[40] We note that the applicant has been in detention since July 2017 and the Minister has not intervened to release him. We consider that there is no realistic prospect that the Minister would exercise a personal discretion in favour of the applicant. Further, there is the stated position of the respondent that the applicant will be returned to Kenya if the non-revocation decision is affirmed. Consequently, the examples given in paragraph 9.1(3) would not diminish the weight to be given to the consequence of removal to Kenya.
[40] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [56].
Therefore, pursuant to s 198, the legal consequence of a decision not to revoke the visa cancellation is that the applicant would be removed from Australia as soon as it is reasonably practicable for that to occur. We have already found that there is a very real risk that the applicant will suffer significant harm if he is removed to Kenya. The likely removal to Kenya is a factor that weighs heavily in favour of revoking the cancellation decision.
The Consequence of Indefinite Detention
We note that if the visa cancellation is not revoked, the applicant may remain in detention whilst the Minister considers the possibility of re-settlement or the exercise of personal discretion. Given the serious mental condition of the applicant, this would have severe consequences adverse to the applicant. This outcome appears very unlikely given the stated intention of the respondent to remove the applicant to Kenya if the non-revocation decision is affirmed. Nevertheless, it remains a possibility, but this in itself may amount to indefinite detention whilst consideration is being given to these administrative options. In WKMZ, Kenny and Mortimer JJ said:[41]
… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly.
[41] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
Conclusion as to Consequences
In considering all of the circumstances referred to above, we conclude that the most likely consequence of a decision to not revoke the cancellation is removal to Kenya. Given that this consequence would be so seriously detrimental to the applicant, we give it significant weight.
In conclusion, the legal and practical consequences of a decision not to revoke the applicant’s visa cancellation is the prospect of refoulement to Kenya or indefinite detention or both. We accept that these consequences would likely cause significant harm to the applicant and breach Australia’s human rights obligations. These consequences weigh heavily in favour of revoking the cancellation decision.
Further consideration of Direction 90 – 9.1(2) and (3)
Returning to a consideration of sub-paragraphs 9.1(2) and (3) of Direction 90, we are required to weigh the existence of non-refoulement obligations against the seriousness of the criminal offending bearing in mind that under s 198 unlawful non-citizens are liable to be removed from Australia as soon as reasonably practicable. Paragraph 9.1(3) of Direction 90 makes it clear that the existence of a non-refoulement obligation does not preclude non-revocation of the cancellation decision. As part of the ultimate weighing up exercise required by Direction 90, it may be appropriate to not revoke the cancellation decision because the existence of the non-refoulement obligation is outweighed by the seriousness of the applicant’s criminal offending, seen in the context of a proper consideration of all of the relevant factors in accordance with Direction 90. The existence of a non-refoulement obligation is not always determinative of the issue as to whether to revoke the cancellation decision. Non-refoulement is an “other consideration” which must be taken into account by us as the decision maker. We will return to this weighing up exercise later in our reasons.
Extent of impediments if removed to home country – 9.2 of Direction 90
Direction 90 requires that we consider the extent of any impediments that the applicant may face if removed from Australia to his home country of Kenya in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(1)the applicant’s age and health;
(2)whether there are substantial language or cultural barriers; and
(3)any social, medical and/or economic support available to him in that country.
The applicant was born in Kenya but left when 12 years old. His father, who has now died, had become very angry that he wanted to be a Christian and he chased him away. The applicant said in 2004 that he was scared that if he returned to Kenya his family would kill him.[42] The letter of support from the Uniting Church dated 29 January 2008 refers to the widespread unrest and violence in Kenya making it dangerous for a young man ‘with little or no family to return to.’ In his request for revocation, the applicant said that he had fears about returning because he became a Christian and that his family and community would be offended and would cause him ‘grave troubles.’[43] The delegate who decided not to revoke the cancellation decision found that there were some relatives who live in Kenya, but in his 2017 statement the applicant said that he no longer has any family or friends in Kenya. There is no evidence of recent contact with family members in Kenya, however some of the IHMS records in 2020 and 2021 record the applicant expressing an interest in returning to Kenya to see his family including his mother.[44] Having left Kenya at such a young age and having lived his whole adult life in Australia, we consider there would be significant cultural barriers and we conclude that if returned to Kenya he would have little or no family or community support which would be a significant impediment.
[42] Exhibit 5, Respondent’s Additional Tender Bundle, ATB17, statement in support of application for protection visa.
[43] Exhibit 1, T documents at p 114.
[44] Exhibit 4, Respondent’s Further Tender Bundle, TB31 at pages 572 and 608 and exhibit 2, Respondent’s Tender Bundle, TB21 at pages 294, 313 and 342.
The most significant impediment if removed to Kenya arises from the applicant’s schizophrenia. As set out above with respect to non-refoulement, mental health services in Kenya are limited and there is evidence that those who suffer from psychiatric illnesses are not just neglected but face the prospect of discrimination and real harm.[45] If returned to Kenya the applicant would not receive the medical, social or economic support necessary for a person with a psychiatric illness of schizophrenia. He would not be able to work or maintain basic living standards. The impediments would be extraordinary and insurmountable. This is a factor that weighs very heavily in favour of revoking the cancellation decision.
Impact on victims – 9.3 of Direction 90
[45] Exhibit 8, Applicant’s Bundle of Documents, Human Rights Watch “Living in Chains” October 2020.
We find that this factor neither weighs for nor against revoking the cancellation decision.
Links to the Australian community – 9.4 of Direction 90
We must consider the impact of a non-revocation decision on immediate family members. The applicant advised that he has two aunts, one uncle, one nephew and 10 cousins in Australia but there was little other evidence as to his relationship with them or how they would be impacted by a non-revocation decision.
The applicant arrived in Australia as an unaccompanied stowaway in 2004 when he was 16 years old. According to a letter from the Uniting Church dated 10 December 2007, he developed strong connections with various supporters in Western Australia. Further:
He attended school, did work experience, played soccer well, participated in other community activities and generally settled well in the community. His very many supporters attest to that.
The applicant first received treatment for his schizophrenia in 2007 or 2008. His mental health has been a major factor in his behaviour since at least that time. Despite his poor mental health, he managed to contribute positively to the community in his early years after arrival. He attended college in year 10 and 11 and did a TAFE course in English. He worked in a factory in 2010 and 2011 and laboured as a gardener in 2014 to 2015. He formed positive relationships with those in the Christian community and those who pledged their support to him in 2007 and 2008. He avoided committing serious crimes until 2015 which was about 11 years after his arrival. Pursuant to paragraph 9.4.1(2) of Direction 90, we give more weight to the applicant’s period of positive contribution noting that he arrived as a child and has lived in Australia for 18 years including all of his adulthood.
The applicant has expressed a desire to be with his children and to help them grow up. Given the length of time in Australia and that his children live in Australia, we consider that the applicant has significant ties and hence this is a factor that weighs significantly in favour of revoking the cancellation decision.
Conclusion as to whether to exercise the discretion to revoke the cancellation of the visa
We have considered the specific circumstances relating to the applicant as part of our consideration. We are now required to determine whether to exercise our discretion to revoke the cancellation decision. Part of that determination requires us, pursuant to sub-paragraph 9.1(2) of Direction 90, to carefully weigh the existence of non-refoulement obligations against the seriousness of the criminal offending.
In coming to our decision, we have placed significant weight on the severe mental illness suffered by the applicant. The applicant’s schizophrenia was a causative factor in his criminal offending, but if properly treated it is likely that his mental condition will improve (or at least not deteriorate) making it less likely that he will re-offend. The applicant has available to him in the community significant mental health services and he has expressed an intention to engage with those services. We have reached the view that it is likely that he will engage and that with appropriate treatment the risk of re-offending will be diminished. The final reason for placing significant weight on his schizophrenia is that if returned to Kenya it is likely that he will not receive adequate treatment and that, due to his mental health condition, he will be discriminated against and be at risk of real harm, perhaps even death.
We consider that the factors in favour of exercising a discretion to revoke the cancellation decision outweigh the countervailing factors.
The protection and expectations of the Australian community, together with the family violence factor, weigh in favour of non-revocation. The applicant committed serious crimes involving domestic violence with severe consequences for his partner and his children. These crimes are viewed very seriously and so too are the crimes by which he inflicted harm to the officials working in the detention centre. However, the medical experts say that his schizophrenia was a causative factor in his criminal offending and therefore the likelihood of re-offending will be diminished if he receives proper treatment and support. We consider it is likely that he will engage with the available support services and receive appropriate treatment which will have a positive impact and reduce the chances of re-offending to an acceptable level.
The best interests of minor children, non-refoulement and risk of harm if returned, the extent of impediments if removed and the links to the Australian community are factors which weigh in favour of revoking the cancellation decision. If the cancellation decision is not revoked, the likely outcome will be removal to Kenya where he will most likely suffer the most horrific consequences due to his schizophrenia. Not only will he not receive adequate treatment, but he will face discrimination, a real risk of being held in chains, and even death. This is a most significant factor in our decision because a person who developed a mental illness in Australia and who has lived his whole adult life in Australia, including an eleven year period of mostly positive contribution, should not have to face such a risk of harm. His most serious offending in the community took place in 2015 which was eleven years after his arrival as a child stowaway fleeing a country because he was no longer accepted by his family. Another factor is that he has two daughters born in Australia aged 11 and 12. His past conduct towards these children was appalling and he has been absent for much of their lives, so we give this factor less weight but it is nevertheless in the best interests of these children if he remains in Australia where he will have the opportunity to help with their development towards adulthood.
We consider that in these circumstances the existence of non-refoulement obligations, involving such a severe risk of harm, outweighs the seriousness of the criminal offending.
The three considerations of family violence and the protection and expectations of the Australian community as primary considerations should generally be given greater weight than the other considerations, but this is a case where the other considerations together with the primary consideration of the best interests of minor children outweigh those three primary conditions. In exercising our discretion we take into account that Australia may afford a higher level of tolerance of criminal conduct by someone like the applicant who has lived in the Australian community for most of his life and from the age of 16.[46]
[46] Direction 90 at paragraph 5.2(4)
DECISION
The decision of the Tribunal is to set aside the non-revocation decision and to substitute a decision that the cancellation decision is revoked.
The consequence of this decision is that the applicant will be able to lawfully remain in Australia. We mentioned above the concern we had with respect to the mental capacity of the applicant giving instructions for his removal to Kenya. We consider that decision may have been affected by the applicant’s desire to leave detention on the basis seemingly of having no other choice but to return to Kenya. This decision provides another alternative, namely that of remaining in the country that he has called home for the last 18 years.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones, Member Ben-Tovim

..............................[sgd]..........................................
Associate
Dated: 7 June 2022

Date(s) of hearing: 6 April 2022

Counsel for the Applicant: M. Guo

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondent: N. Wood SC

Solicitors for the Respondent: Sparke Helmore

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2017/0717
GENERAL DIVISION	)

Offence	Offence date	Sentence date	Sentence
Stealing	15.09.2006	11.10.2006	Conditional Release Order for 6 months with a $250 undertaking
Carried an article with intent to injure (disable)	15.09.2006	11.10.2006	Conditional Release Order for 6 months with a $250 undertaking
Possessing a prohibited drug (cannabis)	25.07.2010	31.08.2010	Conditional Release Order for 5 months with a $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)
Engaged in conduct without consent causing harm to Commonwealth Public Official (2 offences)	12.11.2019	13.12.2019	6 months imprisonment to be released after 3 months

Date(s) of hearing:	6 April 2022
Counsel for the Applicant:	M. Guo
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Counsel for the Respondent:	N. Wood SC
Solicitors for the Respondent:	Sparke Helmore