Rowe and Minister for Home Affairs (Migration)
[2018] AATA 2708
•9 August 2018
Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708 (9 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2829
Re:Miles Rowe
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:9 August 2018
Place:Sydney
The decision under review is set aside and in substitution thereof the cancellation of the Applicant’s visa is revoked.
......................[sgd]..............................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of a visa – applicant does not pass character test – substantial criminal record – dishonesty/stealing offences – whether another reason why original decision should be revoked – mental health issues – diagnosis of schizophrenia – recent engagement with treatment – Direction No. 65 – Primary considerations – protection of the Australian community – best interests of minor children – expectations of Australian community – Other considerations – strength, nature and duration of ties – extent of impediments if removed – importance of maintaining current treatment regime – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Ali and Minister for Immigration and Citizenship [2011] AATA 780
Ashnarayan and Minister for Immigration and Citizenship [2011] AATA 667
Ausage and Minister for Immigration and Citizenship [2010] AATA 794
Baharestan and Department of Immigration and Citizenship [2011] 122 ALD 219
BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886
Bou and Minister for Immigration and Border Protection (Migration) [2017] AATA 2781
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Cutugno and Minister for Immigration and Multicultural Affairs [2006] AATA 1098
Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390
Drollet and Minister for Immigration and Citizenship [2010] AATA 854
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Ince and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 92
Lavea and Minister for Immigration and Citizenship [2008] AATA 966
Leota and Minister for Immigration and Border Protection [2018] AATA 1365
Lesuma and Minister for Immigration and Citizenship [2007] AATA 1731
Ozer and Minister for Immigration and Border Protection (Migration) [2017] AATA 956
Paenga and Minister for Immigration and Citizenship [2010] AATA 814
QGMJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1537
Siueva and Minister for Home Affairs (Migration) [2018] AATA 1079
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Taivei v Minister for Home Affairs [2018] FCA 1129
Thompson and Minister for Immigration and Border Protection (Migration) [2017] AATA 1245
Toia and Minister for Immigration and Citizenship [2007] AATA 2078
TVCA and Minister for Immigration and Citizenship [2013] AATA 309
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296
Vazquez and Minister for Immigration, Local Government and Ethnic Affairs [1989] AATA 165
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466Zaoui and Minister for Immigration and Citizenship [2011] AATA 515
SECONDARY MATERIALS
Andrews, G, Dean, K et al: Management of Mental Disorders (School of Psychiatry, University of New South Wales, 5th edition, 2013)
Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, Washington DC, 2013. Fifth edition)
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
9 August 2018
This is an application by Mr Miles Rowe appealing against a decision (the Reviewable Decision) of the Minister (via his delegate) not to revoke the cancellation of Mr Rowe’s Class TY Subclass 444 Special Category (Temporary) visa which was made on the basis that, because of his extensive criminal history, he failed the character test set out in the Migration Act 1958 (Cth) (the Act).
The consideration of Mr Rowe’s application poses an exquisite dilemma for the Tribunal which can be stated simply: what is the correct and preferable decision to make regarding Mr Rowe who has an extensive criminal history but is also clearly suffering from a level of mental disorder which, together with his misuse of drugs, fundamentally explains the origins of much of his criminal behaviour.
It is a further sad reflection that Mr Rowe has only received proper diagnosis of and treatment for his mental health condition as a consequence of his being incarcerated. It was initially through the custodial medical services that his condition was first diagnosed and treatment commenced. While he is/was in custody his effective treatment continued and his mental health condition was managed. Once released back into the community his mental health status declined, his adherence to treatment faltered and he re-offended, thus returning to the ministrations of various custodial health services. The sad cycle repeats.
The Issue before the Tribunal
Section 501CA(4) of the Act provides a mechanism whereby the Minister may revoke a mandatory cancellation of a visa which was made on the grounds that the holder has a “substantial criminal record”.[1]
[1] Migration Act 1958 (Cth) s. 501(3A).
The legislation requires that the Minister, in doing so, must be satisfied that the Applicant either (a) meets the character test set out in s 501 of the Act or (b) that there is another reason for so doing.
Similarly, it falls then to this Tribunal, in deciding whether or not to set aside the Reviewable Decision and either recommend that Ministerial discretion be exercised in favour of the Applicant, or substitute another decision, to answer the same question.
It is clear and not in dispute that the Applicant does not pass the character test, and consequently the issue before the Tribunal is whether under s 501CA(4)(b)(ii) of the Act, “... there is another reason why the original decision should be revoked”.
In Gaspar v Minister for Immigration and Border Protection, North ACJ elaborated on how to approach this discretion:
“The preferable conclusion is that s 501CA (4) (b) (ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked”. [2]
[2][2016] FCA 1166, at [38].
It has also been stated by this Tribunal that:
“The existence or otherwise of “another reason” should be established on the balance of probabilities”.[3]
[3] Siueva and Minister for Home Affairs (Migration) [2018] AATA 1079 at [21].
The Legislative Scheme – A brief outline
Section 501(3A) of the Act provides that the Minister must cancel a persons’ visa in the following circumstances:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
This visa cancellation process is mandatory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 501(7)(c) provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
………….
(c) the person has been sentenced to a term of imprisonment of 12 months or more;…
It can thus be seen clearly in relation to the Applicant that the cancellation of his visa was an automatic process: he was serving a sentence of imprisonment and further, he cannot meet the required “character test” because that term of imprisonment was for a period of greater than 12 months.
Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it.
Section 501CA of the Act outlines the process:
(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
(n) 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.
It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect as follows:
(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.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
A decision on such an application is, in most circumstances, made by a delegate of the Minister. In the Applicant’s case, this review decision resulted in a determination that the mandatory revocation should not be set aside.[4]
[4] Section 501 G Documents at [14] –[ 23].
In coming to their decision, the Delegate noted that, since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside.
In doing so the Delegate followed the requirements set out in Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) (discussed below) in coming to their conclusion. This is because under s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act).
Where a decision has been made by a delegate of the Minister under s 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under s 500(1)(ba) of the Act. The Applicant lodged his application for review with the Tribunal on 22 May 2018.[5]
[5] G Documents at [3].
The application was heard by this Tribunal on 6 August 2018. Under the requirements of s 500(6L)(c) of the Act, the Tribunal must determine the matter within 84 days of the date upon which the Applicant was notified of the reviewable decision. In this case, the matter must be determined on or before 9 August 2018. In the absence of a decision by that date the reviewable decision would be deemed to have been affirmed.
Mr Rowe’s Visa Record
Mr Rowe was born in New Zealand in 1984 and first arrived in Australia in 1991. He has travelled frequently to and from Australia but has resided here, in effect since 2004, only making short trips outside the country. There is no suggestion that at any time he was not compliant with any visa requirements.[6] At the time of his visa cancellation he was holding a Class TY Subclass 444 Special Category (Temporary) visa.
[6] Respondent’s Statement of Issues Facts and Contentions paragraph 4.
Mr Rowe’s Criminal Record
Mr Rowe has an extensive criminal record which dates back to 2009. Most of his offences seem to revolve around his habit of walking into retail premises, helping himself to a variety of goods and seeking to leave without paying. When challenged he has been aggressive and threatening towards staff and has, on occasions, menaced them with a variety of weapons.
Mr Rowe has been nothing if not peripatetic. His offences have taken place in Mount Gambia (SA), Portland (Victoria), Warrnambool (Vic), Penrith (NSW) and Melbourne. His record discloses:[7]
·2 counts of dishonestly taking property without consent
·15 separate counts of shop steal
·4 counts of giving details of a false name or identity
·6 counts of theft
·3 counts of either armed robbery or robbery with an offensive weapon
·Several other counts related to bail matters, dealing with the proceeds of theft, drunkenness in public and possessing a knife in a public place.
[7] G Documents at [25]-[28].
Mr Rowe’s sentences have generally been of short duration – in terms of days or months other than conviction in the Penrith District Court (see below) resulting in a term of imprisonment of 2 years.
In addition, while in immigration detention Mr Rowe escaped from custody (on 3 October 2017) while attending a medical appointment and was at large for some time during which time he committed further offences.
There is some confusion here as the Delegate’s report gives the figure of 79 days at large[8], whereas the official record from Strategic Border Command shows his escape from the High Dependency Unit at Western General Hospital, Footscray (Victoria) on 3 October 2017 and then his arrest at Mount Gambia and his being held in detention at the Mount Gambia Police Station on 10 October 2017.[9] The latter version is the one which must be preferred.
[8] G Documents at [18].
[9] G Documents at [105].
The list of items stolen by Mr Rowe throughout these events encompasses a remote controlled helicopter toy, milk, petrol, two bars of Weetbix, cigarettes, a bottle of Jack Daniels and a box of beer.[10]
[10] G Documents at [16]-[17].
In relation to the matters where a weapon was in evidence, the Tribunal asked Mr Rowe to explain the details of each incident.
The first relates to a robbery which came before the Courts in June 2010. There are no details of that incident in the papers before the Tribunal other than a statement by Mr Rowe’s legal representative when dealing with a matter in 2017 to the effect that Mr Rowe’s “recollection was he went to a milk bar with a – what he described as a blunt meat cleaver and again took some milk from a milk bar down in Melbourne”.[11] There is no evidence about how that meat-cleaver was displayed or used, or who was threatened and what the effect upon them might have been. The Tribunal is inclined to believe that there was no such menacing use of this weapon because the penalty imposed for the overall offence was a sentence of three months which led a subsequent judicial officer to remark that this “conviction for armed robbery (which) must have been at the lower end of the scale”.[12]
[11] G Documents at [38].
[12] G Documents at [43].
The second relates to an incident which occurred on 14 November 2011 and came before the Penrith District Court on 8 October 2013. The remarks of the Sentencing Judge in describing the incident are, inter alia, as follows:
“The victim (…..) was working behind the cash register and saw the offender enter the store and walk towards some shelves in the store. A short time later, the offender walked past the cash register towards the front door of the shop. He was carrying a remote control helicopter in its packaging; valued at $39.95. The victim spoke to the offender and said “Aren’t you going to pay for this one?” indicating towards the helicopter. The offender did not respond but kept walking towards the front door. The victim commenced following him out the door with the intention of stopping him. The offender then turned towards the victim and help up an uncapped syringe with his right hand and jabbed it in the air a couple of times towards the victim and said, “Uh uh’”. The offender was standing within a metre to a metre and a half from the victim at the time. The victim immediately became fearful for his safety and he backed away from the offender who then walked away from the store.”[13]
[13] G Documents at [28]-[29].
Mr Rowe was identified by the police some 10-15 minutes later and apprehended. Among the possessions in his backpack was “a single-bladed pocket knife” which led to his being charged with “Custody of a knife in public place – first offence”.[14]
[14] G documents at [29].
As a result of his conviction on charges arising from this incident Mr Rowe was sentenced to a term of imprisonment of two years commencing 3 March 2013 with a non-parole period of 219 days. In addition he was placed into a community based order regime related to the formal management of his mental health conditions.[15]
[15] G Documents at [26].
The Tribunal thinks it appropriate to consider in some detail the sentencing remarks of Her Honour Judge English in the NSW District Court (Penrith) on 8 October 2013:
·Her Honour noted the submission of Dr Jonathan Adams (Justice Health and Forensic Mental Health Network NSW) in which he concluded that Mr Rowe was suffering from a mental illness (schizophrenia) as defined under section 4 of the Mental Health Act (NSW). The Court noted Dr Adams’ further report (June 2012) in which he drew attention to Mr Rowe’s attempt at self-harm and that following changes in his medication management regime “his mental health had reportedly improved”.[16]
·Her Honour stated: “I find now that the likelihood of his reoffending is low. I find he has good prospects for rehabilitation and I find he is truly remorseful and contrite. I find that at the time he committed this offence he was affected by his mental illness. He had ceased his medication regime and he was living on the streets without the support of his family. He had distanced himself from his family as a result of irrational thoughts flowing from his mental illness. His life was clearly unstable as a result. Additionally, he was using illicit substances at the time which no doubt would have also impacted upon his judgement”.[17]
·She went on to note that since that time he had taken steps to adhere to his medication regime and had “religiously attended for his injections and counselling”, had re-established relationships with his father and family and was working full-time.[18]
[16] G Documents at [30].
[17] G Documents at [33].
[18] G Documents at [31].
Drawing on the sentencing remarks and other material before the Delegate, he/she accepted in their statement of reasons that:
“The available information about Mr ROWE’s offending, including information in sentencing remarks and his own comments, makes it clear that his offending is linked to his ongoing psychological disturbance and mental illness, exacerbated by drug and alcohol abuse. I accept that his offences are typically motivated simply by his immediate needs and the available information about them suggests that he has not deliberately sought to hurt anyone and has not entered into carefully planned criminal activity”.[19]
[19] G Documents at [17] para 26.
Nevertheless the Delegate found that his criminal actions had posed “a direct threat to the safety of persons and would often have been very traumatic experiences”’[20] for them. Further, the Delegate noted, the Courts, with this information before them had not sought to find Mr Rowe unfit to plead or reduced the penalties imposed upon him.
[20] Idem.
The Tribunal agrees that the issue of being unfit to plead was not canvassed before the Courts, however the sentencing remarks of Judge English gives the Tribunal cause to believe that Mr Rowe’s mental state and personal pleadings were taken into account in the imposition of a relatively “light” sentence (two years with immediate release to supervised parole[21]) for an offence carrying a maximum penalty of 20 years imprisonment.[22] Her Honour’s remarks also indicate that Mr Rowe had antecedents dealt with before the Waverley Local Court in relation to a breach of some (unspecified) AVO but that these charges had resulted in his discharge under the provisions of the Mental Health Act (NSW) section 32. Previous larceny charges from February 2013 were dealt with similarly.[23]
[21] G Documents at [34].
[22] G Documents at [28].
[23] G Documents at [31].
In evidence to the Tribunal Mr Rowe expressed his remorse about these events and in particular acknowledged the fear and apprehension he had caused to the victims. He said: “It’s not a good look. It’s one of the horribilist (sic) things I’ve done in my life”. He explained that at the time he was feeling completely paranoid and disconnected with reality. While he explained his need for food and alcohol, he had no idea why he had sought to make off with a toy helicopter which he described as “a stupid thing”.
Mr Rowe’s Mental Health
The Tribunal has already mentioned the report from forensic psychiatrist Dr Jonathan Adams which was before the NSW District Court and relied upon by Judge English in her determination of sentencing.
Mr Rowe’s diagnosis of schizophrenia is accepted by the Respondent and recognised by the Delegate in their initial determination of Mr Rowe’s appeal.
The diagnosis is reinforced by detailed references from:
·Naomi Muller, registered nurse at Camperdown Mental Health Service who attests that Mr Rowe has been treated by that service since January 2014. She describes his treatment regime and states that he is “an active participant in his recovery from his mental illness and has continued to participate in his carpentry apprenticeship full time”. She further gives her opinion that: “.. if Miles was to be separated from his current support system by deportation that his mental health would greatly suffer, and all the hard work towards his recovery implemented by Miles, his family, the judicial system and the health system would be in vain”.[24]
·Professor Nick Glozier, of the same service, who states: “Miles has a nine year history of schizophrenia. On reviewing the forensic psychiatry reports it is clear that his offences in 2009 and in the year afterwards occurred whilst unwell and reflected his illness, paranoia and thought disorder at those times…. When taking his four weekly depot medication he is well and displays no underlying antisocial personality traits”. Professor Glozier goes on to support Mr Rowe being allowed to remain and continue his treatments in a newly established supportive environment.[25]
[24] G Documents at [106].
[25] G Documents at [107].
Andrews et al described schizophrenia thus:
“Schizophrenia is a severe mental illness characterised by distortions of thinking and perception, disorganisation of thought and behaviour, and cognitive impairment in social and occupational functioning. Additionally, the individual may lack insight and although perturbed, may not appreciate that there is anything wrong with his or her mental state. Affect may be shallow, frivolous or inappropriate for the situation, but the most common emotional experiences are anxiety and depression. Social withdrawal or disengagement are also common. In addition, there is often a disturbance in self-initiated, goal-directed activity with limitation of interests or reduced ability to follow a course of action to its logical conclusion. Clear consciousness and intellectual capacity are usually maintained, although disturbances in attention, concentration, memory, and executive functioning are evident”.[26]
[26] Andrews, G, Dean, K et al: Management of Mental Disorders (School of Psychiatry, University of New South Wales, 5th edition, 2013) p. 350.
The latest version of the authoritative Diagnostic and Statistical Manual of Mental Disorders (DSM-5) notes that patients diagnosed with schizophrenia will display
“a range of cognitive, behavioural, and emotional dysfunctions ….associated with impaired occupational or social functioning”.[27] It goes on to describe associated features as including the notation that “Hostility and aggression can be associated with schizophrenia, although spontaneous or random assault is uncommon ………….. It should be noted that the majority of people with schizophrenia are not aggressive and are more frequently victimized than are individuals in the general population”.[28]
[27] Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, Washington DC, 2013. Fifth edition) p. 100.
[28] Ibid p. 101.
Finally, the DSM-5 states the functional consequences of schizophrenia to be:
“…. Associated with significant social and occupational dysfunction. Making educational progress and maintaining employment are frequently impaired by avolition or other disorder manifestations, even when the cognitive skills are sufficient for the tasks at hand. Most individuals are employed at a lower level than their parents, and most, particularly men, do not marry or have limited social contacts outside of their family”.[29]
[29] Ibid p. 104.
The diagnosis of Mr Rowe’s schizophrenia and the extent to which it is part of the aetiology of his offending behaviour is a matter to which the Tribunal will return in the consideration of what would be the expectations of the Australian community in relation to how his application before this Tribunal should be weighed.
The Tribunal is most indebted to the Respondent for providing a concise summary of Mr Rowe’s mental health case history from which a number of points may be taken:
(a)Mr Rowe’s initial diagnosis of schizophrenia was made at the Thomas Embling Hospital (which is the forensic mental health hospital in Victoria) during his admission from 14 January to 5 March 2010. Once released from custody Mr Rowe had no further contact with mental health services until his return to custody in July 2017.
(b)He has a history of repeated self-harm and “erratic, unpredictable behaviour, long standing psychotic illness and refusing medications”.
(c)He was sectioned under the Mental Health Act (Vic) on 2 October 2017 and admitted to hospital; absconded the following day[30]; was arrested again a week later in South Australia; and eventually readmitted to immigration detention in NSW on 27 December 2017 where he was sectioned under the Mental Health Act (NSW).
(d)In January 2018 during a regular mental health assessment Mr Rowe reported feelings of anxiety connected directly to his fear of possibly being deported back to New Zealand.
(e)On 8 February 2018 it was noted that Mr Rowe had demonstrated compliance with his medication (being provided by monthly depot injections[31]) and that “a good response to the medication was documented”. On 20 February 2018 in a follow-up to his treatment for poly-substance abuse “no current issues were identified and his urine drug screen was negative”.[32]
[30] He absconded from the High Dependency Unit at Western General Hospital, Footscray, Victoria on 3 October 2017 and was eventually arrested for theft in Mount Gambia (SA on 10 October 2017). During this brief time he told the Tribunal he made no effort to contact his family as it “would bring danger to them” and in effect, he “turned himself in” in Mount Gambia.
[31] Of the drug Risperdal Consta.
[32] Tribunal Evidence R2 (IHMS-Health Summary).
There is no doubt that Mr Rowe has suffered for many years from a variety of mental health and poly-drug use problems. There is equally no doubt that these have been the principal causative factors in his commission of a series of what are essentially rather minor offences, although there is no denying that they were numerous and in a couple of them his use of weapons caused great anxiety and distress to innocent victims.
The Respondent conceded that when Mr Rowe was compliant with his medication he posed little or no significant threat to other people in the community but then when not compliant there was a high risk of reoffending.
Cases involving schizophrenia considered by the Tribunal
The Tribunal has determined a number of cases involving the question of whether or not to set aside a visa revocation where the issue of an applicant suffering from schizophrenia has been in question.
On a number of occasions it has been put to the Tribunal that where an Applicant has been clinically diagnosed with schizophrenia and where there is evidence that that mental illness was a primary cause of the offending behaviour, the Tribunal should give this serious consideration when making its final determination.
In the majority of cases which the Tribunal has been able to identify, where issues of schizophrenia have been considered in detail by the Tribunal and the Minister’s decision not to revoke the cancellation has been affirmed, the principal factors in the Tribunal’s determination seem to have been:
·that the applicant poses a high or unacceptable risk of reoffending. (Ince and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 92; Vazquez and Minister for Immigration, Local Government and Ethnic Affairs [1989] AATA 165; Toia and Minister for Immigration and Citizenship [2007] AATA 2078; QGMJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1537; Ausage and Minister for Immigration and Citizenship [2010] AATA 794; Bou and Minister for Immigration and Border Protection (Migration) [2017] AATA 2781)
·that the applicant has been given and ignored multiple official warnings about their offending (Zaoui and Minister for Immigration and Citizenship [2011] AATA 515; Ali and Minister for Immigration and Citizenship [2011] AATA 780; Lesuma and Minister for Immigration and Citizenship [2007] AATA 1731)
·that the nature of the offences were particularly serious involving serious violence or sexual violence against minors (Thompson and Minister for Immigration and Border Protection (Migration) [2017] AATA 1245; Ashnarayan and Minister for Immigration and Citizenship [2011] AATA 667).
On the other hand, where the Tribunal has decided to set aside the visa revocation it has, in all instances, judged that the applicant’s risk of reoffending was low; that the mental illness was a major contributing factor in the offending behaviour reducing the applicant’s culpability or that setting aside the revocation was necessary in order to allow the applicant to access treatment and support to deal with their mental health issues. (TVCA and Minister for Immigration and Citizenship [2013] AATA 309; re Baharestan and Department of Immigration and Citizenship [2011] 122 ALD 219; Cutugno and Minister for Immigration and Multicultural Affairs [2006] AATA 1098; Drollet and Minister for Immigration and Citizenship [2010] AATA 854; Lavea and Minister for Immigration and Citizenship [2008] AATA 966; Paenga and Minister for Immigration and Citizenship [2010] AATA 814; Ozer and Minister for Immigration and Border Protection (Migration) [2017] AATA 956).
Sentencing Judge English in 2013 found that Mr Rowe was at a low risk of re-offending and that he was genuinely remorseful and contrite for his offences.[33] On that basis Mr Rowe was sentenced to time served (219 days without bail) and a period of two years imprisonment to be released immediately into supervised parole.[34] The Judge paid considerable attention to Mr Rowe’s diagnosis of schizophrenia.
[33] G Documents at [33].
[34] G Documents at [34].
Mr Rowe however did reoffend. He received a two month sentence in the Warrnambool Magistrate’s Court for minor shoplifting offences where he presented with further drug and alcohol related problems and in a situation of being both homeless and unemployed.[35]
[35] G Documents at [41].
More seriously he came before the Magistrates Court of South Australia in November 2017 where again his offences were for shoplifting and his mental health state was noted. The Sentencing Magistrate (Anderson) referred to Mr Rowe’s “behaving in a very strange way, disrupting traffic, being shirtless and shoeless” and having “a disordered mind”.[36]
[36] G Documents at [43]-[44].
The Tribunal noted that in both the Victorian and South Australian courts Mr Rowe, when the matter of his schizophrenia was mentioned was at pains to deny that he suffered any such condition.[37] He no longer makes any such denials and in fact openly admits to the extent and nature of his problem.
[37] G Documents at [38] and [43].
Similarly there is evidence that Mr Rowe is serious about dealing with his problems by “religiously attending for his injections and counselling”[38] at medical appointments and sessions of therapy and that the support of his family in Australia, contributes to his chances of rehabilitation and effective illness management. The same level of family support does not, on the evidence, appear to exist in New Zealand.
[38] G Documents at [31] – remarks of Judge English.
The Ministerial Direction
Ministerial Directions, issued to guide decision makers, including this Tribunal, in their interpretation of various sections of the Act are made under s 499 of that Act. There is a long history of such Directions being made stretching back to 1983.[39] The current Direction, Number 65 was made on 22 December 2014. It establishes various matters for consideration, describing some as “Primary Considerations” and others as “Other Considerations”.
[39] Details are provided in an earlier decision of this Tribunal in BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886 at [113].
Primary Considerations
The three “primary considerations” related to revocation requests are set out as:
·Protection of the Australian community from criminal or other serious conduct;
·Best interests of minor children in Australia affected by the decision; and
·Expectations of the Australian community.[40]
[40] Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, part C, paragraph 13.
Protection of the Australian Community
This generally requires consideration of two factors: the risk of re-offending and the severity of the possibly negative aspects of allowing an applicant to remain in Australia.
Sentencing Judge English found that Mr Rowe’s likelihood of reoffending was “low”, nevertheless he did reoffend. The Delegate in their assessment was unpersuaded on this point and found that there was “an ongoing risk” [41] that Mr Rowe would reoffend.
[41] G Documents at [19].
In the opinion of the Tribunal the correct positon to adopt is that: in the event that Mr Rowe adheres strictly to his medication management regime, the risk that he will reoffend is low. In the event that he abandons his medications then the risk is real and highly likely.
Although this may sound as if the Tribunal is equivocating, it is the conclusion to which the facts point, and in the Tribunal’s belief is a positon shared by the Respondent.
In the event that Mr Rowe committed further offences, there is no reason to believe that they would not continue to be offences of a relatively minor nature, primarily involving low level shop stealing. There is no reason to believe, on the basis of past experience that they would be planned or premeditated, or involve acts of violence or any deliberate harm to other people.
These conclusions lead the Tribunal to have to make a judgement about Mr Rowe’s current state of mind and preparedness to both understand the gravity of his position (risking deportation) and the necessity of his strict adherence to prescribed medication.
Mr Rowe gave oral evidence to the Tribunal which, reinforced by some of the medical reports to which reference has been made, is persuasive of the fact that Mr Rowe does understand that failure to adhere to his medications will have the gravest consequences. In some respects it is easier to adhere to a regime which requires structured monthly (or other regular) reporting for depot injections than is the case where daily (or similar) oral medication, taken alone and without supervision, is concerned. The Health Summary presented by the Respondent refers to the fact that: “Mr Rowe continues to be supported, assessed and monitored by the mental health team”.[42] The presence of this structured arrangement of support is important.
[42] Tribunal Evidence R2 (IHMS-Health Summary).
Mr Rowe commented that he had tried to go off medication so that he could feel that he was more in control of his own life and not dependent upon medication or medical assistance. He admits that this failed. He explained: “I’ve been away for a year – I realize it’s not worth it”.
The fact that he sought assistance from the mental health team because of his anxiety about being deported and his recent clean record in terms of drug and alcohol screening speak in his favour.
In the opinion of the Tribunal Mr Rowe understands the seriousness of his position, has demonstrated and shows an ongoing determination to continue with his medication and, as such, poses only a low risk to the community should he be allowed to remain in Australia.
The best that can be said is that this consideration does not weigh against the application.
Best Interests of Minor Children
At one stage, Mr Rowe claimed that he was the father of an Australian child who he has never met and whose mother wished to remain anonymous. No age or further details were given for this child and Mr Rowe claimed that he wanted to remain in Australia “to be apart (sic) of this childs (sic) life and assist him through life”.[43]
[43] G Documents at [102].
This of course was a fantasy as Mr Rowe admitted to the Tribunal and perhaps merely further indicative of his state of mind when not being properly cared for by the mental health system.
There is a Department of Home Affairs file note, dated 4 April 2018, which indicates that Mr Rowe’s sister (Ms Laurrelle Tufuga) reports that Mr Rowe has regular contact with her two (minor) daughters. While she reports that this contact is “regular” and that Mr Rowe is “a good uncle to her children”[44] there is little or no further evidence to support this claim nor to test the quality of that relationship.
[44] G Documents at [109].
As such, while there may be some detriment to these two minor children should Mr Rowe be deported, the Tribunal gives no weight to this consideration. It does not weigh in the Applicant’s favour.
Expectations of the Australian Community
These are often difficult to ascertain in any particular set of circumstances. The expectations of the Australian community will almost always start by weighing against any applicant with a criminal record.[45]
[45] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J; Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [64]-[65] per Robertson J.
On the other hand there has always been a degree of tolerance shown for those offenders where the offences are regarded as of low-order and where issues of exogenous factors such as mental illness need to be taken into consideration.
On the basis of many similarities in the relevant circumstances, the Tribunal takes the same position as expressed by Deputy President McCabe in Do and Minister for Immigration and Border Protection:
“A decision-maker is, to some extent, required to guess at the community’s expectations. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.”[46]
[46] [2016] AATA 390 at [23].
The Tribunal has had the opportunity to assess Mr Rowe in person, albeit but briefly and in the constrained environment of the Tribunal hearing room, but it has no difficulty in believing that were the Australian community at large given the same opportunity and the same access to information as the Tribunal, it would not be vengeful but in fact much more sympathetic to an individual with a severely troubled past who appears to be making genuine efforts to get his life back on track.
The Tribunal notes Deputy President McCabe’s use of the term “further punishment” and also takes note of the comment made in in Fenn and Minister for Immigration and Multicultural Affairs[47] by Deputy President Breen making it clear that “refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts”. So it is with decisions under s 501CA of the Act – they are not intended and cannot be seen as further forms of punishment. The question of whether depriving Mr Rowe of his immediate support network in the NSW mental health system amounts to a potential further punishment is considered below.
[47] [2000] AATA 931 at [8].
It is the conclusion of the Tribunal that the expectations of the Australian community would be better met by revoking the visa cancellation than affirming it.
Other Considerations
Having considered the “Primary” matters as required under paragraph 13 of the Direction, the Tribunal is required to address the “Other Considerations” set out in paragraph 14.
There is very recent important authority from the Federal Court guiding the Tribunal in its approach to the assessment of these “other” considerations when examining matters related to an appeal against a decision not to revoke a visa cancellation.
In Suleiman v Minister for Immigration and Border Protection, Colvin J stated:
“[23] …Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations‘……. It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations‘. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
…
[28] To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was ‘at risk of harm — arguably even death given the consequences that flow from this mental disability if left untreated‘ this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the non-refoulement obligations should be afforded greater weight.” [48]
[48] [2018] FCA 594.
It is in the light of this guidance that the Tribunal turns to consider the “other” considerations as set out. They are:
·International non-refoulement obligations;
·Strength, nature and duration of ties;
·Impact on Australian business interests;
·Impact on victims; and
·Extent of impediments if removed.
It is clear that there are no International non-refoulement obligations to be considered as far as New Zealand is concerned, nor are there any Australian business interests that would be in any way affected. It is also apparent that although there have been victims of Mr Rowe’s erratic and criminal behaviour, the issue of assessing any impact on them in relation to this determination is not relevant.
Strength, nature and duration of ties
It is certainly true that Mr Rowe has resided in Australia for many years. He has two sisters and his father living here and he receives support especially from one of his sisters and more recently has re-established ties with his father, who attended the hearing in his son’s support.
Equally Mr Rowe has some family in New Zealand and there is evidence that, were it required, his mother would be willing to provide support for him, at least in terms of accommodation.[49]
[49] G Documents at [110].
There is, as the Delegate rightly points out, no evidence that Mr Rowe has made anything of a positive contribution to this country since his arrival.[50]
[50] G Documents at [21].
In evidence Mr Rowe indicated that, at this stage, he had no fixed abode but that he hoped he might be able to find short-term accommodation with his sister on the NSW Central Coast when released from immigration detention. She provided a letter to the Tribunal indicating her willingness to do so.[51] He also said that as a qualified carpenter he was confident of being able to get work and that he “loved working” and was well qualified. There was documentary evidence of his qualifications and a favourable reference from a previous employer before the Tribunal.[52]
[51] G Documents at [103].
[52] Applicant’s Evidence section 2.
However, in an overall sense, this factor cannot be taken as adding any significant weight in favour of Mr Rowe’s application.
Extent of impediments if removed
The Delegate recognised that return to New Zealand “will make it hard for him to settle in a different society”, although went on to add that “his mental issues make it hard for him to establish a positive and productive life anywhere, including Australia”.[53]
[53] Idem.
Very properly the Respondent supplied the Tribunal with ample evidence that the mental health system in New Zealand is entirely comparable with that in Australia and that Mr Rowe would have access, as a New Zealand citizen, to the full range of mental health supports.[54] In addition, as a New Zealand citizen Mr Rowe would be entitled to access a range of social security supports and benefits which are not available to him, as a non-citizen, in this country. Materially he would be better off there than here.
[54] Attachment to Respondent’s Statement of Issues Facts and Contentions.
However it could be argued that to interrupt Mr Rowe’s hard-established relatively new regime of effective management of his mental health conditions by removing him from Australia and the support of his family, with the almost inevitable consequence that (even with the quality of health care available in New Zealand and the suggested support of his mother) his mental health conditions will deteriorate and his chances of committing further criminal offences will increase, could be seen, if not as a form of punishment, then at the very least, as a serious threat to his future wellbeing.
This matter was canvassed recently by Perram J in an extension of time application where His Honour said:
“[4] The concern I raised this afternoon with Ms Cheesman, who appeared for the Minister, was that there appeared to be something perhaps socially irresponsible about deporting a person back to New Zealand who was schizophrenic without having made arrangements for their mental health care….
[5] At the resumed hearing, Ms Cheesman informed me that arrangements have been put in place with the New Zealand authorities to ensure that the Applicant would be in touch with the mental health authorities in New Zealand.”[55]
[55] Leota v Minister for Home Affairs [2018] FCA 1073.
The Tribunal sought information from the Respondent about whether similar conditions were likely to prevail in the event that Mr Rowe were deported. In reply, the Respondent advised that protocols were established in relation to removals in the Department’s Removals Procedure Advice Manual. In effect, under a Memorandum of Understanding between Australia and New Zealand there is a requirement that each provides the other with a dossier setting out the relevant criminal history of any deportee and that this includes relevant medical and psychiatric information. In the event that the health service provider in Australia (International Health and Medical Services: IHMS) assesses a deportee as needing specialist medical care on their return, such care can be organised by IHMS. This may encompass provision of comprehensive Discharge Summaries; a minimum 14-day supply of medication and possibly the making of medical appointments with a guarantee of payment.
While such services may be provided, it is clear that any such decision about them is discretionary. The Manual provides that: “As part of the HDS (Health Discharge Summary), the health service provider will consider whether a removee requires post-removal health care arrangements and will advise the Department on recommendations”.[56] There is no compulsion on the Department to follow any such recommendations.
[56] Extract from Department of Home Affairs: Removals Procedure Advice Manual, section “Post-removal medical support”, supplied by the Respondent per email dated 7 August 2018.
There have been past instances when individuals have been removed from Australia and no such services have been provided.[57] On the other hand as is clear in the case of Leota, it is possible that such arrangements for the transfer of a removee can include arrangements for the continuation of their medical care and supervision.
[57] United Nations Human Rights Committee: Views: Communication No. 1557/2007, Stefan Lars Nystrom v Australia (18 July 2011) at [2.8].
Although in no way suggesting that the health scheme of New Zealand and Fiji are analogous, the Tribunal notes that a recent non-revocation decision affirmed by the Minister, was set aside by the Federal Court on the grounds that the return of the Applicant to that country (Fiji) would result in the shortening of his life due to inadequate medical attention.[58] In the case of Mr Rowe, there exists in the mind of the Tribunal a concern that an interruption to his mental health treatment at this stage, given his demonstrated capacity and propensity for self-harm is a matter to which the Tribunal should, legitimately, have regard with a view to avoiding any (foreseeable) negative outcomes.
[58] Taivei v Minister for Home Affairs [2018] FCA 1129 per Flick J.
There are impediments to Mr Rowe’s return to New Zealand arising from the possible interruption of a delicate regime of medication management. This has only recently been established after both resistance on Mr Rowe’s part and structural failures to maintain, arising from frequent bouts of incarceration. The Tribunal, concerned for Mr Rowe’s welfare, is loath to imperil this recent step towards a possible path of recovery. The Tribunal draws support from, and gives great weight to the opinion on this matter expressed by the Camperdown Mental Health Service.[59] This is an investment which it would be utterly irresponsible to squander.
[59] G Documents at [106].
The Tribunal finds that this consideration weighs very significantly in favour of Mr Rowe’s application.
The calculus of considerations
To borrow a term from the Full Bench of the Federal Court in Contreras[60], the Tribunal must now work through a calculus of considerations for and against the application for revocation.
[60] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In short, neither the protection of the Australian community nor the best interests of minor children carry much weight one way or the other. The former perhaps marginally against, the latter very marginally in favour of the Applicant. Of the remaining “primary considerations”, the expectations of the Australian community, in the Tribunal’s opinion, weighs in favour of the application.
Among the “other considerations”, only two of the five appear relevant. The length of time and degree of involvement in the Australian community weighs neither for nor against the application. The impediments which will be suffered by the Applicant weigh in favour of the revocation of the visa cancellation, not because the inherent level of health care and social support in New Zealand can be called into question, but because the maintenance of Mr Rowe’s mental health treatments is at such a delicate stage at this very moment that there is no legal, humane or decent rationale for putting them (and him) at risk should they be interrupted.
DECISION
The decision under review is set aside and in substitution thereof the cancellation of the Applicant’s visa is revoked.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.........................[sgd]...........................................
Associate
Dated: 9 August 2018
Date(s) of hearing: 6 August 2018 Applicant: In person Solicitors for the Respondent: Australian Government Solicitor
7
27
0