SGQV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3071

SGQV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3071 (16 September 2022)

Division:GENERAL DIVISION

File Number:          2020/5291

Re:SGQV

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President Britten-Jones

Date:16 September 2022  

Place:Melbourne

The decision of the Tribunal is to set aside the non-revocation decision dated 23 August 2020 and substitute a decision that the cancellation decision made on 18 July 2016 is revoked.

...............[sgd].........................................................

Deputy President Britten-Jones

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether there is ‘another reason’ to revoke mandatory cancellation decision – applicant has schizophrenia and a mental disability and would face significant impediments and serious risk of harm if removed to Somalia – the likely consequence of cancellation is further or indefinite detention which will cause his mental condition to deteriorate - the primary considerations of the protection and expectations of the Australian community are outweighed by the countervailing considerations - the decision under review is set aside and substituted with a decision revoking the cancellation of the applicant’s visa.

Legislation

Migration Act 1958 (Cth)

Cases

CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124.

FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185.
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 120.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41.
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, [2014] FCA 303.
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55.

Secondary Materials

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

REASONS FOR DECISION

Deputy President Britten-Jones

16 September 2022

1. This application arises from a decision of the Federal Court of Australia remitting an earlier decision of the Tribunal for re-hearing due to jurisdictional error. 

2. The decision (the non-revocation decision) which is the subject of this review application was made by a delegate of the Minister on 23 August 2020 pursuant to s 501CA(4) of the Migration Act 1958 (Cth)[1].  The delegate decided not to revoke the mandatory cancellation of the applicant’s Partner (Class BC) (Subclass 100) visa (the visa).  The mandatory cancellation of the visa (the cancellation decision) was made on 18 July 2016 under s 501(3A).

   [1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated

3. The applicant seeks to set aside the non-revocation decision and to substitute it with a decision that the cancellation decision be revoked.  This would have the effect of reinstating his visa and allow him to be released from detention.

   Legislative Framework

4. Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

5. The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]

   [2] Migration Act 1958 (Cth) s 501(7)(c).

6. Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:

   501CA  Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

   (1)  This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   (2)  For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

   (a)  would be the reason, or a part of the reason, for making the original decision; and

   (b)  is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

   (3)  As soon as practicable after making the original decision, the Minister must:

   (a)  give the person, in the way that the Minister considers appropriate in the circumstances:

   (i)  a written notice that sets out the original decision; and

   (ii)  particulars of the relevant information; and

   (b)  invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

   (4)  The Minister may revoke the original decision if:

   (a)  the person makes representations in accordance with the invitation; and

   (b)  the Minister is satisfied:

   (i)  that the person passes the character test (as defined by section 501); or

   (ii)  that there is another reason why the original decision should be revoked.

7. Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.

   Issues before the Tribunal

8. The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.

9. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3]  Deciding whether or not to be satisfied that “another reason” exists is an evaluative exercise and might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4] 

   [3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].

   [4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].

10. The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is another reason to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[5]

    [5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501   and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

    Direction 90

11. The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.

12. The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens who have been participating in, and contributing to, the Australian   community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)  Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other  types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

13. In making a decision under s 501CA(4), the following are primary considerations:

    (i)protection of the Australian community from criminal or other serious conduct;

    (ii)whether the conduct engaged in constituted family violence;

    (iii)the best interests of minor children in Australia; and

    (iv)expectations of the Australian community.

14. In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):

    (i)international non-refoulement obligations;

    (ii)extent of impediments if removed;

    (iii)impact on victims; and

    (iv)links to the Australian community, including:

    a)strength, nature and duration of ties to Australia; and

    b)impact on Australian business interests.

15. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6]

    SOME BACKGROUND FACTS[7]

    [6] Direction 90 at 7.

    [7] These facts are not contentious and are derived from the reasons for decision of the Tribunal decision on 16 November 2020.

16. The Applicant was born in Somalia on 10 December 1985. He was orphaned aged seven, recruited as a child soldier, and escaped with his aunt and other family members to a refugee camp in Kenya where he lived for around six years.

17. He arrived in Australia in 2001 aged 15 and was granted his visa on 2 September 2003.

18. The Applicant has two brothers, one sister, four cousins and an aunt living in Australia.[8] He has no family in Somalia.

    [8] Exhibit 5, Respondent’s Remittal Bundle, RB9 at p 141.

19. The Applicant has an extensive history of offending which covers much of his time while free in the Australian community.  

20. The Applicant suffers from a psychiatric disorder and has an intellectual disability.

21. In January 2006, the Applicant was admitted to Thomas Embling Psychiatric Hospital and diagnosed with paranoid schizophrenia. His condition suggested an onset of psychotic illness from at least early 2005 and required, on occasion, management in seclusion. He was treated with an anti-psychotic, olanzapine. He remained in hospital until October 2006.

22. In June 2007, the Applicant committed the offences of intentionally causing serious injury and attempted theft. They involved the Applicant stabbing an associate in the buttock and ribs, without provocation and while mentally ill. Shortly after these events, in July 2007, while on remand, the Applicant again found himself in the Thomas Embling Psychiatric hospital.

23. In April 2008, the Applicant was sentenced to three years imprisonment for the offending in June 2007. He was supervised by the adult parole board on release into the community in January 2010.

24. As part of his parole requirements, the Applicant completed a drug and alcohol program and received support from the Brosnan Centre.  The Applicant was on parole for nine months, ending in September 2010.

25. In May 2011, the Applicant engaged in armed robbery while intoxicated and at a time when his mental health had deteriorated.[9] The Applicant threatened a person unknown to him with a box cutter.

    [9] Exhibit 5, Respondent’s Tender Bundle, RB12, p 155.

26. While on remand from May until August 2011, the Applicant was again transferred to the Thomas Embling Psychiatric Hospital.

27. When released into the community on bail in August 2011, the Applicant was made a compulsory patient subject to a treatment order under the Mental Health Act 2014 (Vic).[10] This order required the Applicant’s fortnightly attendance at the Waratah Area Mental Health Service (where he was assessed as lacking insight into his illness). He received fortnightly “depot medication.” He attended a psychiatrist monthly. He received weekly assistance from the Australian Community Support Organisation in terms of general supports and accessing services and, from the Salvation Army, twice weekly assistance in attending his psychiatric appointments and in developing recreational interests[11] and transitional housing.[12]

    [10] Mental Health Act 2014 (Vic), s 52 - a treatment order is one made by the Mental Health Tribunal that enables a person subject to it to be compulsorily treated in either the community or a designated mental health service.

    [11] Exhibit 5, Respondent’s Tender Bundle, RB13, p 165.

    [12] Exhibit 5, Respondent’s Tender Bundle, RB14, p 182.

28. In February and March 2012, a clinical psychologist, Mr Coffey, examined the Applicant and provided a report dated 20 March 2012 (Coffey Report).[13] Mr Coffey accepts that the Applicant suffers from schizophrenia. His illness was described as “severe, chronic, at times not responsive to treatment, and prone to rapid relapse.”[14]

    [13] Exhibit 5, Respondent’s Tender Bundle, RB13.

    [14] Ibid, p 172 [49].

29. Mr Coffey recommended that the Applicant’s cognitive functioning be made the subject of comprehensive neuropsychological assessment. This led to the Applicant being interviewed by a clinical neuropsychologist, Ms Lofthouse, who provided a report on 17 April 2012.[15] Amongst other things, Ms Lofthouse opined that:

    (a)The Applicant had a generalised level of intellectual impairment placing him in the mildly intellectually impaired range on a scale of intellectual function.[16]  

    (b)The Applicant suffered from a developmental disorder, such as a mild intellectual disability.[17]

    [15] Exhibit 5, Respondent’s Tender Bundle, RB14.

    [16] Exhibit 5, Respondent’s Tender Bundle, RB14, p 188.

    [17] Exhibit 5, Respondent’s Tender Bundle, RB14, p 190 - Ms Lofthouse’s opinion that SGQV was intellectually impaired is confirmed in a further report of a clinical neuropsychologist, Dr Vuletich of 30/11/17 - RB26.

30. In August 2012, the Applicant was assessed as suffering from an intellectual disability rendering him eligible for services under Victoria’s disability legislation.[18]

    [18] Exhibit 5, Respondent’s Tender Bundle, RB11 at p 149.

31. In November 2012, the Applicant was sentenced to a four-year Community Corrections Order for the armed robbery in May 2011. That order required, amongst other things, judicial monitoring and permitted implementation of a justice plan (for which the Applicant was eligible by reason of his intellectually disabled status).

32. While for at least six months after the order the Applicant appeared to be progressing well, he then suffered a prolonged and severe relapse of his mental illness such that by November 2014 his mental health had severely compromised his ability to comply with the community correction order.[19]

    [19] Consequent on him breaching the order, in November 2015 the Applicant was re-sentenced, this time to 12 months imprisonment.

33. Despite his being the subject of judicial monitoring and a “justice plan,” the Applicant was convicted of numerous further offences.      

34. The Applicant was remanded in custody in September 2015 and re-admitted to Thomas Embling Psychiatric Hospital in December 2015[20] where he remained until July 2016.[21]

    [20] Exhibit 5, Respondent’s Tender Bundle, RB16 at p 196.

    [21] Exhibit 5, Respondent’s Tender Bundle, RB12 at p 156.

35. Since being discharged from the hospital in July 2016, the Applicant has been in immigration detention.

    CONSIDERATION

    Protection of the Australian community – 8.1 of Direction 90

36. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 90, I give consideration below to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90

37. The applicant’s offending is very serious. 

38. In the period 2004 to 2016, the Applicant appeared before the Court on 18 occasions and received sentences of imprisonment on 11 of those occasions.

39. He has been convicted of:

    ·     Property related offences (such as theft) in each of the years 2004 to 2008, 2011, 2015 and 2016;

    ·     Offences suggestive of a lack of respect for Australia’s law enforcement framework (such as resisting police, failing to answer bail, assaulting police and contravening community corrections orders) in each of the years 2005, 2006, 2007, 2015 and 2016;

    ·     Assault in 2004, 2005, 2006, 2008, 2013, 2015 and 2016;

    ·     Other offences involving violence or suggestive of a preparedness to engage in violence, such as (in 2016) recklessly causing injury and threaten to inflict serious injury, (in 2015) assault emergency worker on duty and possess controlled weapon without excuse, (in 2012) armed robbery, (in 2008) make threat to kill and intentionally cause serious injury, (in 2007) intentionally threaten serious injury, (in 2005) intentionally cause injury and assault with a weapon and (in 2004) possess controlled weapon without excuse.

1. In addressing the Applicant in April 2008 when sentencing him for intentionally causing serious injury and attempted theft, His Honour Judge Pilgrim of the Victorian County Court said:

   You have many prior convictions unfortunately for such a young man. You have 51 convictions from six court appearances. Your convictions are for many and various offences. For instance, you have 15 convictions for theft, two for attempted theft. You have seven convictions for assault and one for assault with a weapon. You have four convictions for causing injury intentionally, two for attempted robbery and three for robbery, in addition to other indictable and summary offences. This is a disgraceful record taking into account your age.

2. In May 2011, the Applicant engaged in armed robbery and was sentenced to a 4-year Community Corrections Order. He was then convicted of two charges of unlawful assault and further convictions, including theft, failing to answer bail, assaulting an emergency worker on duty and possessing a controlled weapon without excuse.  There was a further armed robbery for which he was convicted on 18 November 2015 and received 12 months imprisonment.

3. The offending involves violence and dishonesty and shows a complete disregard for authority.  Violent crimes are viewed very seriously by the Australian Government and community.  The criminal activity was frequent over a 12-year period which has a significant cumulative effect.  The Applicant continued to offend despite numerous custodial sentences.

4. The offending for which he was convicted in February 2016 included possessing cannabis, theft, recklessly cause injury, assault police officer, resist police officer and threat to inflict serious injury.

5. The Applicant accepts that he has not behaved as he would like in detention, but he explained that it is a very hard environment and that he is proud of his more recent conduct.

6. I note that the Applicant’s most serious offence of the violent stabbing took place in June 2007 which was well after his diagnosis of paranoid schizophrenia in January 2006 with a likely onset in early 2005.  It follows that most of his offending from 2004 took place in the context of a severe mental illness.  The Applicant’s offending should be seen in the context of this mental illness and his drug and alcohol abuse, but the frequency and seriousness of the offending is nevertheless alarming.

   The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90

7. In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.[22] As required by paragraph 8.1.2(2) of Direction 90, I also have regard to, cumulatively:

   (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or  other serious conduct; and

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   i)information and evidence on the risk of the non­ citizen re-offending; and

   ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

   [22] Direction 90 at 8.1.2(1).

8. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[23] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

   [23] (2014) 225 FCR 424; [2014] FCA 673.

   Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90

9. If the Applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because of the violent nature of much of the offending and its frequency sustained over a long period.

   Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90

10. The Applicant engaged in regular serious offending often of a violent nature over a period of 12 years until 2016 from which time he has been incarcerated either in prison or detention.  The Applicant relies upon the lack of convictions and his abstinence from drugs or alcohol for the last six years but I give that very little weight because he has not been in the community for that period.  The Applicant has not demonstrated any capacity to remain offence free while in the community.

11. On 8 December 2017, Dr Febbo, consultant psychiatrist, provided a comprehensive report.  He provided the following opinion:

    [The applicant] was reviewed for the purpose of providing a psychiatric opinion. There was specific enquiry in relation to my opinion in relation to [the applicant’s] risk of reoffending if he were to be placed back in the community.

    [The applicant] has a history of schizophrenia and it appears that there has been limited response to antipsychotic medication. In addition [the applicant’s] compliance with antipsychotic medication appears to be somewhat erratic and this is also likely to reflect limited insight. In addition I note a history of substance abuse, in particular cannabis abuse and alcohol abuse. I also note a history of intellectual impairment and [the applicant] was under the auspices of disability services.

    …

    In my opinion [the applicant] has a number of risk factors in relation to reoffending. These include the presence of schizophrenia, erratic compliance with treatment, limited insight, personality pathology including antisocial personality traits, limited support, and difficulties in relation to accommodation, intellectual impairment, and a particularly significant forensic history. In my opinion [the applicant’s] risk of reoffending, if placed in the community, is at the high end of the spectrum. He will require considerable support for him to manage within a community setting.

12. The risk factors identified by Dr Febbo in 2017 are in large part unchanged on the evidence before the Tribunal.  However, it would appear likely that some of the risk factors will be addressed if the applicant is returned to the community.  In this regard there is evidence from Marleen Singh who, as a support coordinator at National Human Rights Support Service, has extensive experience and expertise in assisting people to transition from detention to the community.  I was very impressed with the oral evidence given by Ms Singh.  The National Human Rights Support Service will assist the applicant if he is released so as to prepare his NDIS plan and provide short term accommodation and general care.  Ms Singh has also arranged for a forensic psychologist to provide support services to the applicant upon his release.  In addition, support is available from the Asylum Seeker Resource Centre who would meet with the applicant and explore his immediate needs and formulate a support plan.  He has support available from his family, in particular his brother and his cousins.[24]  The applicant’s brother has offered him accommodation and support and assistance to get employment. The Somali community has also offered its support.  I consider it likely that the applicant would have significant support available to him from family, appropriate institutions and the community.  This support will provide a stable environment for the applicant and improve his chances of not reoffending.

    [24] See statutory declarations from the applicant’s brother and cousins at RB37 and RB52 in Exhibit 5, Respondent’s Tender Bundle.

13. Mr Coffey, a clinical psychologist, has provided a more recent report dated 26 May 2022.  He describes the treatment and recovery plan needed for the applicant if he is released:

    [57] A treatment and recovery plan would be negotiated with [The Applicant] with short and longer term goals associated with his health and quality of daily life and according to his values, interests and aspirations. Such plans are inclusive of all domains of experience from symptom reduction and physical health to the quality of friendships and relationships, vocational choices and the pursuit of new recreational activities. The treatment, training and psychosocial programs needed to assist the attainment of the goals are defined in the recovery plan.

    [58] Treatments informed by evidence based clinical practice guidelines are integrated into the recovery plan. For example, in relation to [The Applicant]’s chronic schizophrenia, guidelines would recommend the following treatments:

    - Anti-psychotic medication provided according to a dosing regimen and sequenced according to therapeutic response;

    - Intensive case management;

    - A range of psychological treatments and programs: Cognitive Behaviour Therapy for persistent symptoms of psychosis; social skills training; emotional regulation training;

    - Cognitive remediation (skills training in attention, learning and memory functioning) where recovery is affected by cognitive impairments;

    - Psychosocial programs designed to: impart skills of daily living (e.g, managing finances, food preparation and diet), promote social contact and community involvement, create a structured purposeful routine, provide vocational training and support, and encourage the development of recreational interests;

    - To the extent desired by [The Applicant], assistance in strengthening family relationships and fostering culturally congruent supports and relationships with the Somali Australian community;

    - A consistent relationship with a GP to regularly monitor physical health.

    [59] [The Applicant] has a range of conditions and vulnerabilities additional to his psychotic illness. His neurodevelopmental disorder requires the involvement of specialist intellectual disability services. He requires specialist drug and alcohol services until he has demonstrated an extended abstinence from drug use and alcohol abuse in the community. [The Applicant] does not currently appear to meet the diagnostic criteria for PTSD; however, in my opinion it is likely he suffers from the long term sequelae of developmental trauma. His trauma related psychological vulnerabilities require specialized psychological treatment.

    [60] In addition to the services addressing his mental health and cognitive needs, he should receive offence specific psychological treatments provided by a forensic service. The objective of this treatment would be to increase his awareness of the precursors of his offending, explore attitudes and beliefs that may be permissive or excusatory of violence, increase pro-social commitment, and improve victim empathy.

    [61] It is apparent that besides pharmacotherapy, none of these treatments and programs are currently being provided to [The Applicant]. The detention setting precludes many of them: some assume a community environment in which the person recovers their psychosocial functioning and gradually improves their quality of life; others, such as treatment for trauma related conditions, require a trusting psychotherapeutic relationship in a situation perceived to be safe which is difficult to establish in immigration detention; others still require practitioners with specialist skills generally not available in immigration detention.

    [62] In my opinion to maximise the likelihood that [The Applicant] is not severely disabled by his psychotic illness and other psychological conditions he would need to be provided with the range of treatments and programs I have outlined. Insofar as many of these interventions cannot be delivered in a detention environment, or cannot be optimally provided in that setting, he is more likely to be less disabled by his mental disorders and make a fuller recovery if he is living in the community. It should be apparent that such an increased potential for recovery would be realized only with the kind of intensive treatment and support I have described. Without the appropriate services in place, there would be a real possibility that [The Applicant]’s condition would deteriorate rather than improve were he in the community.

    [63] Ideally, the services required to deliver the treatments and programs outlined would be identified prior to [The Applicant]’s release into the community and the plan of community care and who is responsible for what described. It would also be advantageous if [The Applicant] has an initial engagement with some of the key workers prior to his release.

    [64] A service delivery model which would meet [The Applicant]’s complex needs would have as the central services an area mental health service and a service providing supported residential care and a psychosocial program. Specialist services and community organisations would build on and support what these services deliver. Specialist services would include a dual disability consultative service, a drug and alcohol service, a forensic service, and a service for refugees with trauma related conditions. Community organisations may include the Australian Red Cross and the Somali Australian Council of Victoria both of whom I understand have offered support if [The Applicant] is released into the community.

14. Mr Coffey also addresses the risk of recidivism by reference to risk factors as follows:

    [65] You have also asked me to address ‘risk management’. In the time I have had available, it has not been possible to conduct a comprehensive assessment of risk of recidivism and I will limit myself to a few brief observations. Self-evidently [The Applicant] possesses many risk factors which heighten the probability of violent recidivism. On a standardized measure of risk of violent offending, multiple risk factors are present: his traumatic history, his history of violent offending, substance abuse, his very limited employment history, severe mental illness, problems with insight, problems with his response to correctional supervision, inconsistent engagement with treatment services, limited coping strategies and possible future problems with the stability of his living circumstances.

    [66] It is however my preliminary view that the risk of recidivism is likely to be significantly reduced were [The Applicant] to fully engage in the program of treatment and support I have outlined. If I am correct about that, the next question is whether he is likely to so engage. When I interviewed him he appeared open to receiving a range of mental health services in the community and, as described, he had gained a measure of understanding of his mental illness and his treatment needs. I am aware that his engagement with treatment in immigration detention has been fitful in the past although more consistent recently. Trust in community services will need to be built; this is hardly an uncommon feature of service delivery for people with severe mental illnesses. If [The Applicant] becomes acutely unwell and declines treatment, the provisions of the Mental Health Act providing for involuntary treatment may need to be invoked. I believe however that there is a stronger likelihood that he will establish a trusting relationship with community mental health services than he has with detention based services because he tends to associate the latter with the system of detention itself; moreover, community services will be able to provide for a wider range of [The Applicant]’s needs.

15. Based upon the two expert reports, I find that the likelihood of reoffending depends upon the implementation and the engagement and compliance with an elaborate treatment and recovery plan.  Without such a plan the applicant’s risk of reoffending would be in the moderate to high range.  The risk would reduce significantly if a plan is put into place and adhered to.  The evidence indicates that the necessary support services are available and I accept the evidence that they would be delivered to the applicant.  I cannot be certain that the applicant will engage with them in the short or long term, but Mr Coffey expresses some optimism based on his interviews with the applicant.

16. There is also evidence that the applicant has already taken steps towards rehabilitation in particular because he has not consumed alcohol for 8 years and he has been compliant with his medication.

17. The applicant in oral evidence said that he would continue to take his medication and engage with mental health services if released.  He said he would avoid alcohol and do drug and alcohol counselling. He would engage with Ms Singh to organise accommodation. He is very keen to get out of detention.  I accept the evidence from the applicant about his intention to engage with all available support services and therefore find that the risk of reoffending is reduced to an acceptable level of low to moderate.

    Conclusion as to protection of the Australian community – 8.1 of Direction 90

18. The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[25] Because of the seriousness of the potential harm that would arise from further similar offending, the Australian community has a very low tolerance for any risk of future harm by the applicant.  He has committed serious crimes of a violent nature over a significant period of time but, whilst in detention, he has developed an appropriate attitude to addressing those factors of concern.  There are clear plans in place by experienced support services and it is likely that he will engage with them.  Consequently, the level of risk of reoffending is reduced to an acceptable level.  I consider that the protection of the Australian community is a factor which weighs in favour of not revoking the cancellation decision.  I give this factor moderate weight.

    [25] Direction 90 at 8.1(1).

    Family Violence – 8.2 of Direction 90

19. The applicant has not committed family violence so this is a neutral factor in terms of weight.

    Best interests of minor children – 8.3 of Direction 90

20. There are no minor children whose interests would be affected by the decision and hence this factor weighs neither for nor against the revocation of the cancellation decision.

    Expectations of the Australian community – 8.4 of Direction 90

21. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[26]  I do not consider the circumstances of the applicant in this case present an unacceptable risk because of my findings with respect to the protection of the Australian community set out above.

    [26] Direction 90 at 8.4(1).

22. Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case.  However, in the weighing up exercise by which I evaluate whether to exercise my discretion, it will be necessary to assess the circumstances particular to the applicant. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[27] remain apposite to the expectations of the Australian community under Direction 90:

    [97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.

    …

    [102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.

    [27] (2019) 272 FCR 454; [2019] FCAFC 185.

1. I find that the character concerns arising from the applicant’s violence mean that the Australian community would expect the applicant to not continue to hold a visa.

2. My conclusion as to the expectations of the Australian community is that it is a factor that weighs in favour of not revoking the cancellation decision and I give it moderate weight.

   Other Considerations

3. In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[28]  I must consider and understand the representations received from the applicant.[29]  I must also consider the consequences that would flow from not revoking the cancellation decision.[30]

   [28] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

   [29] See above at [11].

   [30] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244

   International non-refoulement obligations – 9.1 of Direction 90

4. A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[31] The type of harm being claimed by the applicant if he is returned to Somalia is as follows:

   (a)persons with mental illness in Somalia are subjected to systemic and severe discrimination, amounting to cruel, inhumane and degrading treatment.

   (b)the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations Convention against Torture) report states that the mentally ill are generally chained and imprisoned. Additionally, violations of basic human rights and freedom and denial of civil, political, economic, social and cultural rights to those suffering from mental health disorders are a common occurrence within the mental health facilities and in the community.

   (c)forcibly returning the applicant to Somalia would expose him to the risk of deficient treatment.

   (d)after leaving Somalia at a very young age and in the absence of family members in Somalia, there is a real and substantial basis for the applicant to believe he may be seriously harmed based on ethnicity, imputed political opinion, disability and impairments or an accumulation of these grounds.

   (e)there is no functioning national health system and access to healthcare services are severely limited.

   (f)DFAT concludes that refugees in need of psychological and mental health support cannot be returned to Somalia.

   [31] Direction 90 at 9.1(1).

5. The applicant has articulated the prospect of Australia breaching its non-refoulement and other human rights-based treaty obligations as reasons for revoking the cancellation decision.  This is in addition to, and distinct from, his underlying claimed fear of harm if returned to Somalia.

6. I will consider separately the risk of harm if returned to Somalia, but I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.

7. The applicant submits that he is owed non-refoulement obligations and that a finding to that effect should be made by the Tribunal.  He says that he will not apply for a protection visa because of the delay in hearing and determining it. 

8. The respondent submits that the Tribunal ought to defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa.  The applicant submits that it would not be appropriate to defer consideration of the non-refoulement claims in circumstances where the applicant has said that he will not apply for a protection visa and where ongoing detention is deleterious to his mental health.

9. The recent decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 addressed this very issue:

   [21]  It is in that context that the specific issue in this case is to be addressed — whether a decision-maker considering revocation under s 501CA(4) is required to determine whether non-refoulement obligations are owed to the former visa holder where the person makes representations which raise a potential breach of those obligations but the person remains free to apply for a protection visa. As has been stated, the dispute between the parties was not if, but how, such representations should be considered by the decision-maker.

   Decision-makers’ approach to representations

   [22] Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason“ why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

   … [24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. …

   Decision-makers’ approach to non-refoulement

   … [29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.

   [30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.

   (footnotes removed)

10. It follows that I am required to read, identify, understand and evaluate the representations made by the applicant.  Those representations included a claim of non-refoulement under domestic law.  The High Court said that such a claim may be considered by the decision-maker, but that one available outcome is to defer assessment of whether the applicant is owed those non-refoulement obligations.[32]  I consider that the option to defer is still available in circumstances where the applicant provides an indication that he will not apply for a protection visa.  I intend to defer assessment because it is open to the applicant to apply for a protection visa.  That does not mean that I ignore the representations made by the applicant.  Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[33] but ‘one available outcome’ is the deferral of the substantive assessment of such a claim.[34]

    [32] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [30].

    [33] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].

    [34] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].

11. I note that the applicant has articulated representations based upon what the High Court in Plaintiff M1/2021 described as ‘unenacted international non-refoulement obligations’.  In particular, the applicant claimed that continuing detention may result in Australia breaching the Disability Convention.[35]  This obligation is not a mandatory relevant consideration but I have found below that continuing detention would have a significantly deleterious impact on the applicant’s mental health and that it is therefore a factor that weighs heavily in favour of revoking the cancellation decision.

    [35] This formed the basis for the decision of Bromberg J setting aside the Tribunal’s decision.

12. The comments in Plaintiff M1/2021 were made in the context of Direction 65 which has been revoked but they still apply to the decision I must make under s 501CA(4). The current direction is Direction 90 which provides at 9.1:

    (4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

    (5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

    (6) It may not be possible at the section 501/section 501CA stage to consider non­ refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­ refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

    (7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­ citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

13. In this case the applicant has clearly raised claims which may give rise to international non-refoulement obligations.  Paragraph 9.1(6) of Direction 90 provides that it may not be possible at the section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application.  That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues.  Sub-paragraph (6) goes on to say that a decision-maker, in making a decision under s 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis.  This approach to the task of a decision-maker is apposite to the case before me.

    Applicant Representations of Risk of Harm

14. The applicant has made representations concerning risk of harm in Somalia. The High Court has provided the following guidance for this situation:[36]

    [37] … [The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.

    …

    [39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason“ why the Cancellation Decision should be revoked.

    [36] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [37] and [39].

15. CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (CKT20) makes it clear that I am required to consider facts underpinning the claim.  In CKT20 the Full Court of the Federal Court rejected the Minister’s submission that there was no obligation to consider a claim based on ethnicity.[37]

    [37] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [97] to [106].

16. On 3 August 2016, the applicant made representations in support of a request that the cancellation decision be revoked.  The Full Court summarised those and subsequent representations concerning risk of harm in Somalia arising from his mental health conditions as follows:

    [8]  The respondent made representations under s 501CA(4) in support of his request that the mandatory visa cancellation be revoked. He sent a request for revocation of a mandatory visa cancellation dated 3 August 2016. Together with the request was a personal details form which indicated that he suffered from an intellectual disability and schizophrenia. He indicated that a more detailed submission in support of his revocation request would be provided. By a letter dated 8 December 2016, Victoria Legal Aid (acting for the respondent) made detailed representations in support of the revocation request. As instructed by the Department in its letter dated 18 July 2016 to the respondent, the representations addressed the parts of the Minister’s Direction No 65 which were relevant to the respondent’s circumstances. It is unnecessary to summarise all of those representations. For the purposes of issue (e), it is sufficient to focus upon the representations made on behalf of the respondent in respect of his mental illness and the risk of harm he faced if he were returned to Somalia because of his mental health and intellectual problems.

    [9]  The respondent’s representations dated 8 December 2016 included an express contention that non-refoulement was a matter relevant to the issue of revocation. Moreover, and significantly, it was explicitly stated that if this contention was not accepted and the decision-maker considered that it was unnecessary to determine whether non-refoulement obligations were owed to the respondent, other matters remained apposite. They included the “cogent evidence of the fragility of his mental state and… he is held in a restricted and isolated environment which is very likely to compromise his mental stability”. This statement was made in the immediate context of the respondent’s detention on Christmas Island, but it plainly had wider ramifications particularly with reference to what was stated in the next section of the representations dated 8 December 2016.

    …

    [12]  The representations dated 8 December 2016 were accompanied by several reports and other documents, including a psychological report dated 20 March 2012 by a clinical psychologist and a neuropsychological report dated 27 April 2012. It is evident that these reports were obtained in relation to the sentencing of the respondent, but they were relied upon in support of his revocation request. Both reports are comprehensive. The former report states that the respondent’s “schizophrenic illness has been severe, chronic, at times not responsive to treatment, and prone to rapid relapse”. It also states that there “is objective evidence that a prison environment quite rapidly has had an adverse effect on  [The Applicant]’s mental state” and that there “are strong grounds to conclude that imprisonment is a more difficult experience for Mr [The Applicant] than it is for someone without his mental disorder and personal history”. The second report stated that [The Applicant] had an IQ of 56 and that he was basically illiterate. The report concluded that:

    Whatever the cause it would appear that [The Applicant] has significant intellectual deficits and that he should be referred to the Department of Human Services for further assessment with respect to his eligibility to receiving (sic) specialist disability services.

    [13]  Another document which accompanied the representations dated 8 December 2016 was a letter from the Victorian Department of Health and Human Services dated 6 December 2016 in which it was stated that the respondent had been:

    … assessed by psychologist Ms Shireen Dass in August 2012 and was found to have an intellectual disability as defined by the Disability Act, 2006 . In August 2012 [The Applicant] was found within target group and so eligible to receive services through Disability Client Services.

    [14]  By a letter dated 22 August 2017, Victoria Legal Aid made a second detailed submission in support of the revocation request. It was pointed out there that, when the respondent signed a formal “counselling letter” dated 5 August 2008, he was scheduled at Thomas Embling Hospital and was subject to a secure treatment order which indicated that he was “significantly psychiatrically unwell”; that he had been diagnosed with schizophrenia in around 2006; that this condition remained sufficiently chronic to warrant his continued detention at Thomas Embling Hospital, and that his intellectual disability was not formally diagnosed until 2012.

    [15] In a third detailed submission by Victoria Legal Aid, dated 21 December 2017, extensive material was provided regarding the respondent’s mental health, intellectual disability and cognitive impairment. This material included a letter dated 22 August 2012 from the Victorian Department of Human Services, which confirmed that the respondent had been assessed as having “an intellectual disability as defined in Disability Act 2006…”. The submission dated 21 December 2017 also attached a copy of a country information report dated 13 June 2017 published by the Department of Foreign Affairs and Trade (DFAT Report) which recorded that in 2015 the Somalian Government announced that “refugees in need of psychological and mental health support cannot be returned to Somalia”. It was submitted that the respondent’s “multiple and complex health needs cannot be cared for in Somalia and returning him would be cruel in all the circumstances”. It was put that the respondent is “a Somali orphan and refugee who is profoundly impaired by schizophrenia and an intellectual disability, which likely predates his arrival” and that he “has a horrific developmental history and multiple sources of vulnerability”.

17. I turn now to consider the applicant’s representations concerning risk of harm in Somalia.  The applicant’s schizophrenia and intellectual impairment are most important when considering the risk of harm if returned to Somalia.  The country information establishes that not only is there a lack of support for those with mental illnesses in Somalia but there is positive discrimination and negative treatment.  It is hard to imagine a worse outcome for the applicant than being returned to Somalia. In this regard, I adopt what the Full Court said:

    [40] … It is difficult to think of a more serious claim than that a person is at risk of harm because it was likely that the person would be chained, imprisoned and at risk of physical injury because of Somalia’s treatment of the mentally ill, which claim was supported by the WHO 2010 report.

18. There is also information in the DFAT Report to support the applicant’s claims to fear harm on the basis of his status as a returnee from a Western country and is a person without clan connections. At [3.14], the DFAT Report assesses people who have spent time in the West to face a “moderate risk of violence from al-Shabaab” and that where those individuals “do not have adequate personal security measures in place”, they face a “high risk of violence from al-Shabaab”.

1. The applicant would also be adversely impacted by the general poverty and humanitarian crisis in Somalia.  He has no family or other social supports to rely upon if returned to Somalia.

2. I accept the evidence of the applicant that he would face serious harm if returned to Somalia.

3. As I have previously indicated, I make no finding as to non-refoulement obligations because it is open to the applicant to apply for a protection visa.  However, I am prepared to find in the applicant’s favour that the harm he claims if returned is likely.  This is a factor that weighs heavily in favour of revocation of the cancellation decision. 

   Consequences of cancellation and non-revocation

4. The consequence of the cancellation[38] of the applicant’s visa is that he is an “unlawful non‑citizen” as defined in s 14.

   [38] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [45] to [49].

5. If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen the officer must detain the person:  s 189(1).  A person so detained must be kept in immigration detention until he or she is (relevantly) removed from Australia accordance with s 198, deported under s 200, or granted a visa:  s 196.

6. Relevantly, s 198(2B) requires an officer to remove an unlawful non-citizen from Australia as soon as reasonably practicable if a delegate of the Minister has cancelled the non-citizen’s visa under s 501(3A) and, since that decision, the non-citizen has not made an application for a visa that can be granted while he or she is in the migration zone, and the Minister has decided not to revoke the original decision under s 501CA(4). Section 198(6) requires an officer to remove as soon as practicable an unlawful non-citizen who is a detainee who has made a valid application for a substantive visa that can be granted when he or she is in the migration zone and (relevantly) the visa has been refused and the application finally determined. Section 198(6) would otherwise operate to require the unlawful non-citizen’s removal from Australia if any application for a protection visa was refused.

7. If the cancellation decision is not revoked, s 198(2B) would require the applicant’s removal from Australia if he did not make an application for another visa.  If he does make an application for another visa, he would be liable to be removed from Australia under s 198(6) if that application were to be refused.  I note that the applicant has said that he would not apply for a protection visa because of the expected delay of any such application being determined.

8. If a cancellation decision is revoked, it is taken not to have been made:  s 501CA(5).  In that event, the applicant would not meet the description of an unlawful non‑citizen and would not be subject to removal from Australia as mandated by s 198(2B) or s 198(6) as the case may be.

9. The applicant contends that if the cancellation decision is not revoked that he will either be returned to Somalia or detained indefinitely.  Further or indefinite detention appears more likely because of the practical difficulties in removing a person to Somalia who has psychological or mental health issues.  In either event, the consequence for the applicant would be devastating. If a protection visa application were lodged, then the applicant will face ongoing detention in the intervening period. 

10. The respondent accepts that if no protection visa application is made then the immediate legal consequence of a non-revocation decision may result in removal.  However, the decision would not necessarily result in removal because the applicant could apply for a protection visa and because of the practical difficulties in removing a person to Somalia.  Pursuant to s 197C(3), if a ‘protection finding’ is made on any application for a protection visa, then the applicant would not be liable to be removed immediately.

11. I note that if the visa cancellation is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Prolonged or indefinite detention would have consequences adverse to the applicant because of his mental illness and intellectual impairment.  The applicant gave evidence that he is not coping well in detention.  Mr Coffey considered the implications of ongoing detention on the applicant’s health and said:

    [50] [The Applicant] has undoubtedly benefited from the treatment he has received in detention. He has received pharmacological treatment for his psychotic illness which has been closely monitored and he has received regular psychiatric reviews of his progress. He has also received some counselling of a general nature. Most of the time the treatments he has received have reduced his psychotic symptoms significantly. Further, the controlled environment has resulted in him being unable to abuse alcohol and cannabis; his mental health has greatly benefited from his cessation of substance abuse.

    [51] Immigration detention does not, however, provide an environment designed to support recovery from a serious mental illness, or to assist

    recovery from trauma related conditions, or to allow people with cognitive disabilities live as fully as possible. It is not a place of rehabilitation. It is not designed to promote integration into the community and improve psychosocial functioning. The mental health treatments provided, as proficient as they may be within the scope of what is possible, are directed primarily at symptom reduction. The services are not comprehensive or specialized and they do not operate according to the recovery model which guides community mental health services.

    [52] Moreover, mental health care in immigration detention is complicated by the adverse effects on mental well-being that extended detention often produces. There is strong evidence clinically and through systematic research which demonstrates that for many detainees time in detention is correlated with a deterioration in mental state. There are many characteristics of extended immigration detention that undermine psychological well-being; these include: the indefinite nature of the confinement which can produce loss of hope and demoralization; isolation from family and community; lack of structure to daily life; the dearth of purposeful, productive activity; loss of privacy; inability to regulate the amount of social contact; loss of control and agency over the minutiae of daily life; the constant experience of being monitored and supervised; erosion of skills in independent living owing to the institutional environment; and exposure to violence, both self-harm and interpersonal.

    [53] In my opinion, over time the deleterious effects of the detention environment will limit the benefit [The Applicant] gains from pharmacotherapy.

12. In WKMZ, Kenny and Mortimer JJ considered the impact of further detention which is apposite to the applicant:[39]

    … The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.

    [39] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].

13. The prospect of further detention is a factor that weighs heavily in favour of revoking the cancellation decision.

    Extent of Impediments if Removed – 9.2 of Direction 90

14. Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country of Somalia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the applicant’s age and health;

    (b)whether there are substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to him in that country.

15. The Applicant made representations[40] as to the extent of impediments by letter from his lawyers dated 8 December 2016 as follows:

    [40] Exhibit 5, Respondent’s Tender Bundle at RB12.

    Extent of Impediments if Removed

    As detailed, [The Applicant] has a confirmed diagnosis of schizophrenia and has been assessed to have an intellectual disability with a cognitive functioning of intelligence quotient of 56 and putting him within the extremely low range.

    There is evidence that the treatment of persons with mental illness in Somalia are subjected to systemic and severe discrimination, arguably amounting to cruel, inhumane and degrading treatment in contravention of obligations pursuant to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

    “Many Somalis with mental illness are socially isolated and vulnerable. The pain of this isolation is felt intensely because Somali culture is traditionally communal and family oriented. The mentally ill are generally chained and imprisoned. The country knows only five health care services…

    The containment with chains of mentally challenged people is prevalent in both urban and rural areas…This is also used as a locally accepted medical treatment in mental health facilities…chaining patients is seen as an alternative medication, with not only leaving the patients stigmatised but also causing physical injuries on their hands and legs.

    In addition to the obvious suffering due to mental disorders, there is a hidden burden of stigma and discrimination faced by those Somalis with a mental disorder. Violations of basic human rights and freedom, and denial of civil, political, economic, social and cultural rights to those suffering from mental disorders are a common occurrence in the different Somali regions, both within the mental health facilities and in the community. Much of this goes unreported and therefore remains unquantifiable”.

    It is further submitted that forcibly returning [The Applicant] to Somalia would expose him to the risk of such treatment. He is prescribed medication for treatment of his schizophrenia. Since his diagnosis in 2006 [The Applicant]’s medication has predominantly been administered through a monthly depot injection. His return to Somalia would compromise his access to his medication:

    “All Somali zones depend almost entirely on external sources (international aid or international remittances) for health financing. This reflection becomes more worrying when it is applied on mental health, a neglected and almost forgotten sector. It is widely perceived that no governmental or institutional infrastructure exists in the country which is capable of supporting the development or expansion of mental health care… .

    The availability of drugs on a daily basis has been an issue raised by all respondents. The hospitals do not purchase the drugs. They are usually provided on an irregular basis by WHO and/or private donations/INGO supplies… All facilities complained about very poor storage conditions such as poor safety of the store, ventilation and space arrangements.”

    In addition to the difficulties in accessing basic income, accommodation and other factors necessary for survival in Somalia, medication security is a significant consideration for [The Applicant]. Any such access is further compromised by his cognitive impairment and the fact that he has not been in Somalia since he was 8 years of age. He has little memory of the country, no social or family supports and an impaired cognitive capacity that would not facilitate him easily establishing such networks by himself.

    Australia is a signatory to and has ratified the Convention on the Rights of Persons with Disabilities. Somalia is not and to return [The Applicant] to Somalia would offend Australia’s obligations under this international convention.

    In summary, there are powerful reasons why a decision maker can make a humane decision in relation to [The Applicant]’s revocation request.

16. I accept the applicant’s claims with respect to the extent of impediments of removed.

17. The applicant would face the most severe impediments if returned to Somalia because of those matters set out above in relation to risk of harm and non-refoulement obligations.  There would be significant language and cultural barriers in Somalia because he left there as a child and has not since returned and because he has no family or friends in Somalia.

18. The applicant would not be able to access the medical or counselling services he requires in Somalia and is likely that his mental health would deteriorate and that he would be physically maltreated.  He would have great difficulty establishing himself and maintaining basic living standards.

19. This is a factor that weighs heavily in favour of revocation of the cancellation decision.

    Impact on victims – 9.3 of Direction 90

20. There is no evidence about impact on victims within the meaning of Direction 90 so this is a factor that weighs neither for nor against revocation.

    Links to the Australian community – 9.4 of Direction 90

21. There is no evidence that the sub-consideration ‘Impact on Australian business interests’ is enlivened in this matter and as such it weighs neutrally.

22. I must consider the impact of the visa cancellation decision on the applicant’s immediate family members which in this case would include the applicant’s brother, his cousins and aunt and uncle.  The applicant came to Australia with his family as a child aged 15 years old in 2001.  I give weight to the length of time he has spent in Australia but that weight is diminished because he commenced offending soon after his arrival.  His family have expressed their support for the applicant and they would be devastated if he were to be removed to Somalia.

23. The applicant has developed a strong relationship with Ms Singh who would be integral to him reintegrating into society if he were released.

24. The applicant engaged in some education during his first two years in Australia but he had learning difficulties due to his mental illness and intellectual impairment. He was employed at a chicken factory in about 2003 for six months and as a dishwasher between 2006 and 2007. As at 2012, he was in receipt of the disability support pension and there is a letter dated 6 December 2016 from the Department of Health and Human Services stating that he is eligible to receive services through Disability Client Services and disability support should he be released from immigration detention into the community. The applicant has faced challenges with respect to his education and work due to his mental illness and intellectual impairment. I take into account that he has spent some time contributing positively to the Australian community.

25. The applicant has been in Australia with his family for over 20 years.  His links to the Australian community is a factor to which I give significant weight.

    Conclusion as to whether to exercise the discretion to revoke the cancellation of the visa

26. I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether to exercise the discretion to revoke the cancellation decision.

27. The primary considerations related to the protection and expectations of the Australian community weigh moderately in favour of not revoking the cancellation decision, however, I consider that they are outweighed by the countervailing considerations.  The most important countervailing considerations are the risk of harm if returned to Somalia, the prospect of indefinite detention and the extent of impediments if removed. The applicant’s schizophrenia and intellectual disability are key factors in the decision I have reached for two predominant reasons.  First, much of his past offending can be attributed to his mental illness which if properly treated in the community will significantly decrease the risk of him reoffending.  Second, he will face the most horrific consequences in Somalia or continuing detention because of his mental condition.  Returning the applicant to Somalia would be akin to a death sentence.  Subjecting the applicant to further detention will have severe health consequences. 

28. The applicant came to Australia as a child with his family over 20 years ago.  Since then he has developed a most serious psychological illness for which he is not currently receiving appropriate treatment.  I am confident that he will have access to the institutional supports that he needs, and it is comforting that Ms Singh and his family will be available to support him.  He should be returned to the community so that he can be with his family and receive the treatment he needs.  If this happens then the risk of reoffending will be reduced to an acceptable level.

29. I am satisfied that there is ‘another reason’ to set aside the cancellation decision.

    Decision

30. The decision of the Tribunal is to set aside the non-revocation decision and substitute a decision that the cancellation decision is revoked.

I certify that the preceding 109  (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

..................[sgd]......................................................

Associate

Dated: 16 September 2022

Date of hearing:	31 May 2022
Counsel for the Applicant:	B. Overend
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Counsel for the Respondent:	J. Barrington
Solicitors for the Respondent:	Sparke Helmore