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

[2023] AATA 57

QZBW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 57 (4 January 2023)

Division:GENERAL DIVISION

File Number(s):      2022/8675

Re:QZBW

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:4 January 2023

Date of written reasons:        30 January 2023

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

.................[sgnd]......................

Senior Member Dr N A Manetta

MIGRATION – mandatory cancellation of visa – whether “another reason” for revocation of cancellation decision – Direction 90 – applicant has chronic schizophrenia – offending increasing in seriousness but also long period of no offending – primary considerations weigh heavily against applicant – likelihood of indefinite detention if decision under review affirmed – applicant’s continued deprivation of liberty outweighs primary considerations – decision set aside and revocation of cancellation decision substituted

Legislation

Migration Act 1958 (Cth)

Cases

Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

WKMZ v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463

Secondary Materials

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

30 January 2023

1. After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.  These are the reasons I read out to the parties on 4 January 2023 with relatively minor amendments.[1]

   [1] These reasons include certain standard paragraphs that I use in my reasons, in particular [4] and [27].

2. This is an application by “QZBW”, a person whose name is subject to a confidentiality order and to whom I shall refer in these reasons as “the applicant”. The applicant seeks a review of a decision of the respondent’s delegate dated 12 October 2022. By this decision the delegate affirmed an earlier decision taken in the respondent’s department to cancel mandatorily the applicant’s class XA subclass 866 protection visa. This earlier decision was taken under section 501(3A) of the Migration Act, 1958 (Cth) (“the Act”) after the applicant was sentenced to a term of imprisonment exceeding 12 months, part of which he was required to serve on a full-time basis in jail. I shall describe the offending in due course.

3. The applicant made a timely application for an internal review. The delegate tasked with the conduct of the internal review had two questions to address under section 501CA(4)(b) of the Act.  The first was whether the applicant passed the so-called “character test” under section 501(6). If the answer to this question was “no”, the delegate had then to decide whether there was “another reason” for the cancellation decision to be revoked. In addressing this second question, the delegate was obliged to apply Direction 90 issued under section 499 of the Act.[2] The delegate answered the two questions I have identified as follows. First, the delegate concluded that the applicant did not pass the character test. Secondly, having weighed the various considerations under Direction 90, the delegate concluded that they did not, on balance, favour revocation of the cancellation decision. Accordingly, there was not, in the delegate’s opinion, “another reason” for the cancellation decision to be revoked. The delegate formally declined to revoke the cancellation decision and, accordingly, the cancellation decision remained in force.

   [2] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

   TRIBUNAL’S TASK

4. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions.  In matters like this, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[3] I hear oral evidence and submissions, receive written documents and written submissions, make findings of fact, and draw my own final conclusions. I do not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me.  Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence.

   [3] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [98] and [141].

5. At the hearing before me, Mr Rohan appeared for the applicant; Ms Frankel, for the respondent.  I am indebted to them both for their assistance to me.

   STATEMENT OF CONCLUSION

6. I have decided to set aside the decision under review. I would note immediately that the answer given by the delegate to the first of the two questions was correct. A person who is sentenced to a term or terms of imprisonment totalling 12 months or more cannot pass the “character test” given the provisions in section 501(7)(c) and (d).  The contrary was not contended by Mr Rohan.  The only “live” issue before me, so to speak, was whether there was “another reason” for the cancellation decision to be revoked.  In this respect, on my review of the evidence before me, I have differed from the delegate. 

7. I now turn to set out the background facts and the reasons for my conclusion. 

   BACKGROUND FACTS

8. The applicant was born on 6 September 1979 in Iraq and was, therefore, 43 years of age at the time of the hearing before me. I am satisfied that the applicant has suffered from various mental or psychological problems, the most recent of which has involved substantial memory loss so that he is now unable to recall some earlier events in his life in detail.  The applicant appears to suffer from “psychogenic amnesia”.  I do not believe it is important that I have a detailed appreciation of the applicant’s earlier life in Iraq. I do note that he was eventually granted a protection visa in 2017, and it was this visa that was cancelled by the respondent’s delegate.

9. I accept that the applicant first arrived in Australia on 5 August 2002, at the age of 22, as the holder of a “prospective marriage temporary class TO subclass 300 visa”.  In the event, the applicant did marry his fiancée, and the couple had one child, who is now an adult.

10.  The couple are now divorced.  There is no evidence before me of any ongoing relationship between the applicant and his adult child. Most recently, the applicant has had a short relationship with another woman, and that relationship has now ended following a violent episode I shall describe in due course.

11.  It is an important background matter, in my opinion, that the applicant currently suffers from a serious mental illness; namely, a chronic schizophrenic disorder.  It is clearly a condition that requires ongoing treatment and monitoring. It needs to be controlled by medication. In the absence of medication, a person living with chronic schizophrenia is liable to experience severe mental disturbances. These may well lead to disorderly and, indeed criminal, conduct.  A person with chronic schizophrenia is also likely to benefit ‒ often substantially so ‒ from various social and community services and networks.  These can assist the person to cope with daily living. 

12.  With that background in mind, I turn to consider the applicant’s criminal history. The applicant’s criminal history was before me in evidence: see Exhibit R1, pp 39-42.  The history can be divided into two periods; namely, first, the period from 2004 to 2009, and then the period from 2020 onwards.

13.  The applicant’s criminal offending began in 2004 with common assaults. There were two such convictions in the Kogarah Local Court on 8 January 2004.  These resulted in bonds of 12 months each.  The offences in question appear to be assaults upon his wife when he slapped her twice with an open right hand to the back of her head.  As the applicant was unable to give any reliable evidence about the incident (because of his psychogenic amnesia),  it is reasonable in the circumstances, in my view, to rely on the police record, from which I have drawn the facts: see Exhibit R2, pp 25-26.

14.  In January 2006 the applicant was convicted of a further common assault which resulted in a fine of $500 together with court costs. This appeared to relate to a further assault upon his wife (cf Exhibit R2, p 22) and involved violence in domestic premises.

15.  Pausing here, I note that the convictions are now many years old (the last being some 17 years old as at the date of my oral decision). Nevertheless, they clearly show a history of domestic disturbance and violence at that stage.

16.  There is no further criminal conviction for some two years. On 27 March 2008, however, the applicant was convicted of three offences.  These offences all appear at p 41 of Exhibit R1.  They concern the applicant’s former wife at a time when they were separated from one another but still married. The applicant made a full confession to police on this occasion. He had entered his estranged wife’s unit without permission and had assaulted her by slapping her.  There is a further reference in the police report (Exhibit R1, p 34) to the applicant grabbing her around the neck with both hands, but he apparently desisted when she began to scream. He was convicted of: (1) stalking/intimidating a victim with the intention of inducing physical or mental harm; (2) common assault; and (3) entering enclosed land without lawful excuse (which I take to be a form of criminal trespass). The last of these offences received a fine of $200 and court costs; and the assault received an 18-month bond as did the stalk/intimidate offence. The applicant was placed under probation-service supervision for as long as considered necessary and was required to obey directions for counselling, educational development, or drug and alcohol rehabilitation.

17.  Once again, this offending resulted in severe shock and physical harm to the applicant’s estranged wife, and I note that it is an aggravating factor that their child witnessed his behaviour.

18.  The next set of convictions dates from 20 September 2010.  This offending is the subject of sentencing remarks by the Local Court sitting in Parramatta and concerned events in March 2009 whilst the applicant was still under bond in relation to the offences I have just described.  The applicant had disputed a telephone bill and had spoken about it to a customer-services employee over the phone.  The applicant threatened the employee in a most serious way.   He screamed that he was going to kill the employee in a number of brutal ways.  The applicant also attended a telecommunications shop in the company of another person and demanded money (some $2,000).

19.  The Court indicated strongly (see Exhibit R1, pp 67ff) its lack of tolerance for the behaviour but also took into account a report from a doctor indicating that the applicant had symptoms allowing for a psychiatric diagnosis of paranoid schizophrenia and psychogenic amnesia (see Exhibit R1, p 68). Taking all matters into account, the Court sentenced the applicant to 18 months’ imprisonment with a non-parole period of 14 months.  I note here that the applicant’s offending had now extended to the wider community with very serious threats of violence, and, indeed, the attendance by the applicant at a shop to issue threats and demand money.

20.  A further very serious offence occurred on 29 October 2009.  This offending is the subject of sentencing remarks in the Sydney District Court: see Exhibit R1, pp 55ff. It involved what can only be described as a very serious, but pointless crime. The facts are contained in an agreed statement partially extracted in the Court’s sentencing remarks (see Exhibit R1, pp 56-57). The crime centred upon a tobacco grinder that the applicant had earlier purchased for $30.  He was dissatisfied with the quality of the grinder.  He pulled out a knife and demanded $30 (or other objects) and swore and threatened the shop attendant. In fact, he attempted to strike the attendant with the knife and cut him with it. He left the shop shortly thereafter when another customer entered the shop.  There was further violence, which was not charged but which formed part of the background circumstances which informed the Court’s sentence and which are described in its remarks.

21.  The Court explicitly sentenced the applicant on the basis that his admitted psychiatric illness could not be shown to have arisen before the commission of the offence.  A total of five years’ imprisonment was imposed with a non-parole period of two years and six months. An appeal against the severity of the sentence was dismissed.

22.  Clearly, the offending here was extremely serious.  I accept that the Court proceeded on the basis that the crimes of which the applicant was found guilty were not the product of what it found to be a current condition of schizophrenia. I repeat that I accept that observation and follow it, although I do note that the crime involved an extremely violent dispute over a thirty-dollar purchase, which suggests the applicant may well have been suffering some sort of psychological disturbance.  Nevertheless, I am bound to follow the Court’s reasoning, and I do so.  I accept, therefore, that the applicant was not shown to have been suffering from schizophrenia at the time of the commission of the offence.  Nevertheless,  the Court’s clear indication is that the applicant was suffering from this condition at the time of sentencing. This conclusion was based on a report provided to the court by a Dr Kasinathan dated 6 May 2010, which was before me: Exhibit R2, pp 41-42.

23.  This offending does mark, however, an end point in the applicant’s offending for some years. There is no further offending until 2020.  The evidence before me would tend to suggest that the applicant had begun to comply with his medicinal regime and that he took his prescribed medication regularly.  It is clear that he caused no further trouble for some considerable time, in fact for some ten or so years.

24.  On 9 May 2020, however, the applicant committed a further offence against the person with whom he was living at the time and with whom he was involved in a sexual relationship.  There was an agreed statement of facts before the Court: see Exhibit R2, p 36. The agreed statement indicates that the applicant had known the victim for approximately three to four months and that they were engaged in a casual but intimate relationship. The victim had allowed the accused to move into her home a couple of months before the criminal assault in question. On the day of the offence, the applicant had become paranoid and stated that a man by the name of “Tony” was in the roof cavity. The applicant claimed the victim was conspiring with Tony.  The applicant took a knife from underneath the mattress on which he was lying and threatened to kill the victim.  There was a physical struggle and at a point the applicant grabbed what I assume was a lit cigarette from the victim’s hand and put it into his mouth and said to her: “See, I am crazy!” The applicant ceased his attack when the victim struck him in the face with a coffee mug.  I accept that on the evidence before me the applicant had stopped taking his medication at this time and had swapped ‒ self-evidently very dangerously ‒ to the smoking of methylamphetamine (or “ice”) on a daily basis.  He used cannabis as well.

25.  A transcript of the Court’s sentencing remarks was before me: Exhibit R1, pp 43ff. The Court treated the applicant as a person who must have known that taking ice might bring on a dangerous psychotic episode. That was expressly found by the Court to be a matter of aggravation rather than mitigation. I note that. 

26.  The Court did refer to the applicant having a significant mental illness but this did not eliminate the need for the Court to bear in mind general and personal deterrence, which are, of course, prime sentencing considerations. I note also that the offending occurred in the victim’s private dwelling.  I do note that although the applicant was held to be culpable for taking illicit drugs and discontinuing his medication, which brought on the psychotic episode, it is clear that the Court also accepted that the applicant did have serious mental- health concerns. The applicant was sentenced to an aggregate term of imprisonment of 18 months with a non-parole period of 10 months. It is this offending that brought about the cancellation of the applicant’s visa.

REASONS

27.  I now turn to apply Direction 90 in respect of the second question I identified at the commencement of these reasons.  I frequently refer to certain prefatory remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at paragraphs [32]ff. I usually set these paragraphs out in written reasons and I do so again here: 

32. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

33. I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

34. First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

35. I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

36. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.

28.  I turn now to consider the four primary considerations listed under paragraph 8. The first  such consideration is “the protection of the Australian community from criminal or other serious conduct”. I bear in mind the principles that appear in paragraph 8.1(1) although I shall not set them out. Under subparagraph (2), I am required to give consideration to the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct. In considering the nature and seriousness of the applicant’s criminal offending or other conduct to date, I must have regard to a number of matters specified in subparagraphs (a) to (g) of paragraph 8.1.1(1).

29.  I note that by subparagraph (a), the applicant’s offending to date must be viewed very seriously on a number of grounds.  It has involved violent crimes including violent crimes against women and acts of family violence.  It is quite clear that the Direction requires me to consider with the utmost seriousness the violence in which the applicant has engaged in the past. To the extent that the crimes have involved women and acts of family violence, I am not required to have regard to the sentences imposed: these are always regraded very seriously. The sentences imposed with respect to the assault in the tobacconist shop clearly marked out the sentencing Court’s view of the gravity of the offending. The threatened assault in the telephone shop was also very serious.

30.  I am to have regard to the frequency of the applicant’s offending and whether there is any trend of increasing seriousness.  There have been a large number of offences although it should be noted that there was a decade or so separating the latest offence from the earlier offending. Nevertheless, an overall frequency is clear, and I note that the victims have not been confined to domestic partners (as serious as that offending has been) but have also included other community members. I believe there is a trend of increasing seriousness in that the crimes have been committed in circumstances where the applicant has understood, or ought to have understood, the consequences of a failure by him to take medication; namely, that he was liable to commit serious offences. That is certainly the basis on which he was most recently sentenced.

31.  There has been a cumulative effect of repeated offending, and I take that into account.

32.  I must also consider whether the applicant has reoffended since being formally warned in writing about the consequences of further offending. The applicant was warned in 2012 of possible consequences, including cancellation of his visa, if there were any further offending by him. Whilst I accept that this particular applicant is most unlikely to have borne in mind the letter from 2012 when he most recently offended, it is nevertheless a factor that I am directed to take into account; namely, that the Government has drawn the applicant’s attention to the consequences of further offending. In one sense, the Government can do no more than make it plain in official correspondence that a person must desist from further offending in order to preserve his or her migration status.  I accept that.

33.  I must consider the risks to the Australian community should the applicant commit further offences or engage in other serious conduct. I note, without setting it out, the principle that appears in subparagraph (1) of paragraph 8.1.2.

34.  In assessing risk, I must have regard to two matters “cumulatively”. First, I must have regard to the nature of the harm should the applicant engage in further criminal or other serious conduct; and, secondly, the likelihood of his so doing taking into account information and evidence about the risk and evidence of rehabilitation achieved by the time of my decision.

35.  Turning to the first matter, I note that the nature of the harm to individuals or the community should the applicant reoffend is extremely serious. In all cases, the applicant’s offending has been marked by extreme and inexplicable or irrational aggression.  I regard the level of aggression shown in these cases as quite unpredictable. Over his dissatisfaction with a thirty-dollar purchase, for example, the applicant was prepared to wield a knife against a shop attendant.  He has attacked his partners, and, on the last occasion, he brandished a knife and chased his victim in the flat when he thought she was conspiring with a man in the roof cavity. There is no doubt that the applicant’s unpredictability when he is not following his medicinal regime is high; and, if he were to engage in further conduct of this type, individuals could suffer extreme injury, particularly if weapons are involved as they have been in the past.

36.  So far as the future risk of the applicant engaging in this type of conduct is concerned, this risk is clearly linked, in my opinion, to any failure by him to take his prescribed medication. I accept that the risk is substantially heightened when the applicant does not take his medication. In my opinion, it is difficult to predict how likely it is that the applicant will be vigilant in taking his medication. The applicant suffers from a severe mental condition. It is a commonplace that those suffering from such conditions may intermittently fail to take their medication. I accept that there may be some element of deterrence in this case, offered by the experience of prison and by the prospect of deportation; but this presupposes a continually rational mindset and a rational appreciation that a failure to take medication may lead ‒ indeed, most probably will lead ‒ to serious antisocial behaviours.  Moreover, the applicant has failed in the past to take medication and prior experiences of jail did not prove a sufficient deterrent for him. He claims to have been led astray most recently by those who were frequenting the flat which he shared with his then partner. If I take that evidence at face value, it shows that the applicant failed to appreciate that he needed to exercise extreme vigilance and control in respect of his behaviour and was easily led astray. 

37.  If the applicant were to return to the community, he would not have, on the evidence before me, a personally built network of support available to him to ensure that he took his medication regularly and engaged in prosocial activities that would improve his interactions with others. It is not possible for me to assess accurately what likelihood there would be of the applicant failing to take his medication in the community and, therefore, what the likelihood of his engaging in further criminal or other serious conduct might be; but there would be a substantial risk in my opinion.  To say otherwise would be to ignore the applicant’s history. It would also ignore the very common circumstance where mentally ill people think they are well enough to do without their medication. A medication to control psychotic tendencies often has unpleasant side-effects, and patients are sometimes tempted to self-medicate in other ways or simply to forgo their medication altogether.

38.  I note further that I am to take into account the assessment of risk “cumulatively”. It is clear, therefore, that the risk to the Australian community is considerable in this case.

39.  I am required under paragraph 8.2 to consider family violence committed by the applicant. I note the particular concerns raised in subparagraph (1).  I note also as a general matter that Direction 90, unlike its predecessor, Direction 79, gives this consideration a separate status.

40.  So far as the earlier episodes against his then wife were concerned, I accept that the violence (which includes, I note, uncharged offences) must have been frequent and must have extended well beyond the charged offences. I accept that some of that violence occurred in the presence of their child, a serious aggravating feature. In respect of the second domestic partner, I do not have evidence about the extent of the violence but it would be surprising if the charged offence were the only instance.

41.  There is a trend of increasing seriousness.   This is demonstrated, as the Court found, by the applicant’s decision not to take his medication and by the use of a weapon in unpredictable circumstances. I take into account the cumulative effect of repeated acts of family violence upon both domestic partners and also upon the witnesses to that violence, namely, the applicant’s child. Given the present mental condition of the applicant and his amnesia, he cannot be said to be rehabilitated in any meaningful sense, and he is also unable to accept responsibility for his actions or appreciate the impact of his behaviour on either his victims or the witnesses of the abuse. I accept that while the applicant has developed some insight into his behaviour and has resolved to comply with his medicinal regime from now on, I must assess this resolution in its proper context: the applicant has limited capacity to appreciate the wrongfulness and impact of his behaviour.  I accept also that the applicant has reoffended in the same way after 2012, when he was given a formal warning in respect of his migration status. This is a matter I am required to take into account.

42.  There are no best interests of minor children in Australia to be considered.

43.  Turning now to “expectations of the Australian community” under paragraph 8.4, I note that the community expects non-citizens to obey Australian law. “As a norm” the Australian community would not expect the applicant to remain in Australia given his past behaviour and the present risk he poses. I note that the acts of family violence and the commission of serious crimes against women are two matters that are specifically mentioned in subparagraph (2) (cf subparagraphs (a) and (c)) and that the Australian community would expect the cancellation of the applicant’s visa to remain in place given the character concerns raised by his conduct. I note that these expectations apply regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community; and, furthermore, I am not to assess the expectations of the Australian community for myself but must take them as set out in paragraph 8.4.   I do so. All in all, this consideration counts substantially against the applicant.

44.  I note further that all primary considerations that are relevant in this matter count substantially against the applicant and that none counts in his favour. That is an important matter.

45.  I am required under paragraph 9 to consider so-called “other” considerations. There is a non-exhaustive list of four such considerations. I accept the respondent’s submission that no non-refoulement obligations arise in this case.  Given section 197C of the Act and the protection finding that has been made in his favour, the applicant may not be refouled to Iraq.  I do not believe that the “impediments if removed” consideration is relevant either, since the applicant may not be removed to Iraq and I have no information concerning any third-country option that might prove to be available in the future. I have no information concerning the impact on victims of my decision and so I leave this consideration to one side as well.

46.  I accept that the applicant has some links to the Australian community. I do not give these separate weight because it seems to me that the most likely scenario, if I affirmed the decision under review, is that the applicant would be detained in immigration detention, given the protection finding, until a third-country option is secured or the Minister exercises his personal and non-compellable power (for example, under section 195A) to grant the applicant a visa.  

47.  I note that I have no information before me to suggest that a third-country option is likely to be secured in the short term. Equally, I do not have before me information that suggests that there is a fixed date by which the applicant will be granted a visa under section 195A (or some other section of the Act) if a third country option has not been secured by that time. I do not impute to the Minister an intention to detain the applicant on a quasi-permanent basis as this would be to impute to her a wholly unreasonable intention. But it remains the case that if I affirmed the decision under review, the applicant’s continued detention would most likely be indefinite in the sense of being further prolonged and without any fixed chronological endpoint.[4]

[4] See below at [55] – [56].

48.  The ongoing detention of the applicant in these circumstances gives rise to serious concerns. These are only heightened by the fact that the applicant is otherwise a person of some vulnerability. In my opinion, the applicant’s ability to cope with ongoing detention cannot simply be equated with that of a person who has normal mental functioning.   

49.  The applicant is a person who requires special support given his admitted condition of schizophrenia. Of course, he may, or may not, accept support offered to him in a community setting. But at the present time he does not have his liberty, and this means he is largely deprived of the regular assistance of social-services providers, which might benefit him substantially if he were living in the community.  Whilst he would no doubt receive in detention ad hoc psychiatric intervention for future psychotic episodes, I note that his present environment is intended to segregate detainees as a defensive measure in protection of the Australian community.  Whatever its merits, the detention facility may not be properly equated to a secure health facility.  It is not one that is designed to cater specifically ‒ and, I would add, proactively ‒ for the special mental-health needs of detainees although I do not doubt that there is an opportunity for detainees to seek medical help or to be referred to appropriate specialist services in cases where that is warranted. 

50.  Ongoing detention is a factor that counts substantially in the applicant’s favour in my opinion.  It would do so even if the applicant had normal mental functioning, but its importance as a factor can only be increased by the applicant’s mental condition.

WEIGHING THE CONSIDERATIONS

51.  I turn now to weigh the various considerations. Without wishing to simplify what is a complex balancing process, I must weigh the legitimate interests of a vulnerable and mentally afflicted person in his liberty (including an interest in receiving appropriate medical and social supports in a community setting rather than in a detention centre) against the primary considerations I have identified, which count substantially against him.

52.  I reiterate that the primary considerations count against the applicant substantially.  Generally speaking, they should receive more weight than the other considerations under paragraph 9 of the Direction. The Direction makes this clear in paragraph 7(2). 

53.  But I must also direct my attention to the individual circumstances of each case. Even strong primary considerations may be outweighed by other considerations in a particular context.

54.  In my review, I have been vitally concerned by the prospect of ongoing detention for this applicant, who has special needs. I also take into account the highly relevant fact that he has been in detention since 23 March 2021, which means he has spent almost two years in detention (as at the date of my oral decision).  That is a very long time for an applicant to be detained.  I take into account that, if I affirm the decision under review, a further period of detention will follow this period of nearly two years that I have just identified, making the overall period very long indeed.  I accept fully that the reality of the situation is that if I set aside the decision under review and release the applicant to the Australian community, the community will be at risk.  The supervision and ongoing treatment of mentally ill people in the community is a matter regulated, and provided for, through the application of public health laws in each of Australia’s jurisdictions as well as through the provision of appropriate medical and social services. So far as the legal regime is concerned, there is, of course, provision for the compulsory detention of psychotic persons, when they prove to be a menace to themselves or other community members. In such cases, people so detained receive expert medical care in a hospital or hospital-like environment with a view to their substantial rehabilitation. They are not simply detained on an ongoing basis in a facility which is intended to segregate them from the rest of the community. That is an important consideration in this matter.  In my opinion, it is of real concern that the applicant is not being detained in a facility that is designed to give him high-level care and rehabilitative services to enable him to cope in the future with his life in the community.

55.  No-one could doubt that the applicant has a vital interest in his own liberty after nearly two years in detention, and I would say that he has an interest in receiving appropriate community care and support given his undoubted schizophrenia. In WKMZ v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463, a full Federal Court authority dealing with indefinite detention, the plurality said as follows at [123]:

“The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision-maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law.”

56.  According to the plurality, I must give special consideration to the right of all individuals to their liberty, and in my view I should weigh carefully the impact of indefinite detention (that is, “where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom”).[5] 

[5] WKMZ at [123].

57.  The plurality certainly did not say that this consideration should lead automatically to a revocation of a cancellation decision; but it does remain a very important consideration to be weighed in the circumstances of each case. I accept that the effect of a decision to revoke the cancellation decision in this case will be to release to the Australian community a person who has failed in the past to take his medication.  In relation to the applicant, there is a risk ‒ a substantial risk ‒ of future failures to comply with his medicinal regime with a consequential heightened risk of violence to the Australian community.  I accept also that the applicant’s return to the Australian community will itself be something of a fraught exercise since the applicant does not have the support of family, or it would seem, friends to improve his chances of effective reintegration.

58.  But I am also especially concerned by the prospect of the applicant continuing to be detained on an indefinite basis in a detention centre pending the finding of a suitable third- country option or the exercise of the Minister’s powers to grant him a visa under the Act.  The ongoing deprivation of liberty of an applicant who has spent almost two years in immigration detention, must be a most serious concern;  a fortiori, when the applicant has special mental-health issues. On balance, my conclusion is that the weighing of the various factors I have identified favours revocation of the cancellation decision.

FINAL DECISION

59.  Having reached that conclusion, and now returning to the language of section 501CA(4)(b)(ii) of the Act, I conclude that there is “another reason” for the cancellation decision to be revoked. Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.

……………[sgnd]……………………

Registry Manager

Dated: 30 January 2023

Date of hearing:	21 and 22 December 2022
Advocate for the Applicant:	Gregory Rohan Legal Aid New South Wales
Advocate for the Respondent:	Shelli Frankel Minter Ellison