SGQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4594
•16 November 2020
SGQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4594 (16 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5291
Re:SGQV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member C. J. Furnell
Date:16 November 2020
Place:Melbourne
The Tribunal affirms the decision under review.
...............................[sgd].........................................Senior Member C. J. Furnell
MIGRATION – Mandatory visa cancellation – citizen of Somalia – Class BC Subclass 100 Partner (Migrant) visa – failure to pass good character test – Section 501 of the Migration Act – Property related offending – offences involving violence – recklessly cause injury - whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – risk of recidivism in older offenders – international non-refoulement obligations considered – multiple medical conditions – extent of impediments if removed – decision affirmed
LEGISLATION
Crimes Act 1958 (Vic).
Mental Health Act 2014 (Vic)
Migration Act 1958 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27
BDQ19 v Minister for Home Affairs [2019] FCA 1630
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
DMH16 v Minister for Immigration and Boarder Protection (2017) 253 FCR 576
DLJ18 v Minister for Home Affairs [2019] FCAFC 236
DYY18 v Minister for Home Affairs [2019] FCA 1901
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Hernandez v Minister for Home Affairs [2020] FCA 415
Hughes v R [2017] HCA 20
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Boarder Protection v BHA17 [2018] FCAFC 68
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Plaintiff M70/2011 v Minister for Immigration & Citizenship (2011) 244 CLR 144
PQSM v Minister for Home Affairs [2019] FCA 1540
PRHR and Minister for Immigration and Boarder Protection [2017] AATA 2782
RJE v Secretary to the Department of Justice (2008) 21 VR 526
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Sowa v Minister for Home Affairs [2019] FCAFC 111
Taulahi v Minister for Immigration and Boarder Protection (2016) 246 FCR 146Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
SECONDARY MATERIALS
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Halsbury’s Laws of Australia
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)REASONS FOR DECISION
Senior Member C. J. Furnell
16 November 2020
In this proceeding, the issue before the Tribunal is whether a discretion conferred by the Migration Act 1958 (the Act) to revoke a decision to cancel the Applicant’s Class BC Subclass 100 Partner (Migrant) visa should be exercised. For reasons that follow I have decided that it should not be.
The hearing was held in Melbourne on 5 and 6 November 2020 by audio visual link. The Applicant was represented by Mr Wood of counsel, instructed by Victoria Legal Aid. The Minister was represented by Mr Cleary of counsel, instructed by Sparke Helmore.
BACKGROUND
On 18 July 2016, the Applicant’s visa was subject to mandatory cancellation.[1]
[1] G5. References to “G”” are references to documents provided by the Respondent under s 501G of the Act.
The cancellation was mandatory because, under s 501(3A) of the Act, a delegate of the Minister was satisfied that the Applicant:
·did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[2] having been sentenced to a term of imprisonment of 12 months or more;[3] and;
·was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.[4]
[2] As defined in the Act, s 501(7).
[3] Act s 501(7)(c)-see G4- Sentencing Remarks of His Honour Judge Pilgrim of County Court of Victoria.
[4] G5,62-file note of 18 July 2016 confirming that the Applicant was serving a sentence of imprisonment on a full-time basis in Melbourne Assessment Prison.
The Applicant made representations about revocation of that visa cancellation decision in response to, and in accordance with, the requisite invitation to do so.[5]
[5] Act, s501CA(3).
As a result, the Respondent could then have revoked the decision to cancel the Applicant’s visa if satisfied that he passed the character test or that there was another reason why the visa cancellation decision should be revoked.[6] On 27 February 2018, however, a decision was purportedly made not to revoke the visa cancellation decision.
[6] Act, s 501CA(4).
The Applicant then succeeded in having that purported decision set aside, ultimately on the basis that the decision-maker had made a jurisdictional error by failing to consider matters (including factual matters) raised in the Applicant’s representations.[7]
[7] G7,106 - see a decision of the Full Federal Court of Australia at [2019] FCAFC 188
On 23 August 2020 “another” decision was made not to revoke the visa cancellation decision.[8]
[8] G2
The Applicant applied to the Tribunal for review of that decision on 1 September 2020.[9]
[9] G1: having received notice of the decision on 24 August 2020; G2-6.
In conducting this review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[10] As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.[11]
[10] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14], [15] and [51].
[11] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at [38]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21].
The Applicant accepts that he does not pass the character test.[12] He submits, however, that there is another reason why the visa cancellation decision should be revoked.
[12]Applicant’s statement of Facts, Issues and Contentions of 12 October 2020 (A SFIC) [35]
As is apparent from my decision in this matter, I have not accepted that submission.
Material before the Tribunal
In arriving at that decision, I have had regard not only to the submissions made and evidence adduced at the hearing of this proceeding from the Applicant and one of his cousin’s, but also to documentary material lodged with the Tribunal prior to the hearing.
That documentary material is extensive. It comprised:
· Documents provided by the Respondent under s 501G of the Act (which I refer to as the “G” documents and being Exhibit R1).
· The Applicants statement of facts, issues and contentions of 12 October 2020 (A SFIC).
· The Respondent’s statement of issues, facts and contentions of 22 October 2020 (R SFIC).
· The Applicant’s reply of 29 October 2020 to the R SFIC (A Reply).
· Unsworn statement of the Applicant of 7 October 2020 (Exhibit A1).
· Statutory declaration of a cousin of the Applicant, of 29 October 2020 (Exhibit A2).
· Statutory declaration of a brother of the Applicant, of 29 October 2020 (Exhibit A3).
· Statutory declaration of another cousin of the Applicant, of 21 October 2020 (Exhibit A4).
· Australian Red Cross letter of 8 October 2020. (Exhibit A5).
· Farah Warsame, President of the Somali Community Inc, letter of 9 October 2020 (Exhibit A6).
· Dr Haraco, Secretary Somali Australian Council of Victoria, letter of 7 October 2020 (Exhibit A7).
· First Support Australia Disability Services undated letter (Exhibit A8).
· Kept in chains: Mental illness rampant in Somalia (2011, May 20) (2011 AP Article) (Exhibit A9).[13]
[13] ABDI GULED, Associated Press-retrieved 29 October 2020 from Plight of Somalia's Mentally Ill Patients: World Health Organization Advocates Chain–Free Initiative (2011 SR Article) (Exhibit A10).[14]
[14] MOHAMED SHIIL, Somalia Report, 30 May 2011
· Inside Somalia’s Mental Health Emergency (2019 NH Article) (Exhibit A11).[15]
[15] Abdalle Mumin and Tom Rhodes, The New Humanitarian 26 June 2019
· DFAT Country Information Report, Somalia, 13 June 2017 (Exhibit A12).
· “Culture, context and mental health of Somali refugees” UNHCR 2016 publication (Exhibit A13).
· “Somalia 2019 Human Rights Report” US Department of State, Bureau of Democracy, Human Rights and Labor publication (Exhibit A14).
· World Health Organisation “Mental Health ATLAS 2017 Member State Profile”-Somalia (Exhibit A15).
· Humanitarian Bulletin SOMALIA (OCHA 2019 Bulletin) (Exhibit A16).[16]
· Somalia: Events of 2019 (HRW Report) (Exhibit A17).[17]
· Somalia: Situation Report (OCHA 2020 Report) (Exhibit A18).[18]
· Al-Shabaab Threatens COVID-19 Interventions in Somalia (Exhibit A19).[19]
· Bertelsmann Stiftung, BTI 2020 Country Report — Somalia (Exhibit A20).[20]
· Report of the Secretary-General to the UN Security Council: Situation in Somalia (UN 2020 Report) (Exhibit A21).[21]
Background Facts[22]
[16] United Nations Office for the Coordination of Humanitarian Affairs-1-31 December 2019.
[17] Human Rights Watch, World Report 2020: Somalia.
[18] United Nations Office for the Coordination of Humanitarian Affairs-Somalia Situation Report-updated 5 April 2020
[19] Jamestown Foundation: Terrorism Monitor Volume: 18 Issue: 9-1 May 2020
[20] Report is part of the Bertelsmann Stiftung’s Transformation Index (BTI) 2020. It covers the period from February 1, 2017 to January 31, 2019. The BTI assesses the transformation toward democracy and a market economy as well as the quality of governance in 137 countries.
[21] 13 August 2020
[22] These facts are largely derived from a personal circumstances form apparently completed by the Applicant in August or September 2019-G9-75
The Applicant is aged 34 having been born in Somalia on 10 December 1985He was orphaned aged seven, recruited as a child soldier, and escaped to a refugee camp in Kenya where he lived for around six years.
He arrived in Australia in 2001 aged 15 and was granted a Class BC Subclass 100 Partner (Migrant) visa on 2 September 2003 (apparently, as a dependent of his aunt).[23]
[23] I note, however, that certain material before the Tribunal suggests that the Applicant was on arrival a dependent of his sister
The Applicant has two brothers, one sister, four cousins and an aunt living In Australia. He has no family in Somalia. [24]
[24] G9,141
The Applicant has an extensive history of offending which covers much of his time while free in the Australian community.[25] As submitted by the Respondent, 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.
[25] G3-National Police Certificate of 27 June 2016
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[26], (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.
[26] An offence which was said to involve threats to use a box cutter-G12,155
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 (with my emphasis):
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.
The Applicant’s history of offending is particularly troubling given the amount of time he has spent in hospital or incarcerated since 2005.
The Applicant suffers from a psychiatric disorder and has an intellectual disability.[27]
[27] In certain of the material before the Tribunal reference is made to a psychiatrist, a Dr Chen, opining that the applicant suffered symptoms related to post traumatic stress disorder (see G32,316). No material from Dr Chen is, however, before the Tribunal.
In January 2006 the Applicant was admitted as an in-patient to Thomas Embling Psychiatric Hospital and diagnosed with paranoid schizophrenia. His condition was then such as to suggest 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.[28] He remained in hospital until October 2016.[29]
[28] G13,169; G12,153
[29] A SFIC [12]
In June 2007 the events which resulted in the Applicant being convicted in 2008 for intentionally causing serious injury and attempted theft occurred. 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. There he remained disturbed for several months, until his treatment was modified to include an injectable anti-psychotic, zuclopenthixol decanoate (Clopixol).[30]
[30] G13,169
In April 2008, with respect to his offending in June 2007, the Applicant was sentenced to three years imprisonment. On the Applicant’s behalf, it was contended that this term of imprisonment facilitated his continuing treatment at the psychiatric hospital, and his supervision by the adult parole board on release into the community in January 2010.
As part of his parole requirements, the Applicant completed a drug and alcohol program and received support from the Brosnan Centre. The parole arrangements were characterised as the first court-imposed disposition that allowed for therapeutic supports to be offered to the Applicant in the community, under supervision.[31] The Applicant’s period of parole lasted nine months, ending in September 2010.
[31] G12,154
In May 2011, the Applicant engaged in armed robbery while intoxicated and at a time when his mental health had deteriorated.[32] The Applicant threatened a person unknown to him with a box cutter.
[32] G12,155
While on remand from May until August 2011, the Applicant was again transferred to the Thomas Embling Psychiatric Hospital.
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).[33] 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[34] and transitional housing.[35]
[33] Mental Health Act 2014, s52-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
[34] G13,165
[35] G14,182
In February and March 2012 a clinical psychologist, Mr Coffey, examined the Applicant and provided a report dated 20 March 2012 (Coffey Report).[36] While I will elaborate later on certain aspects of the report, it is clear from the report that Mr Coffey accepts that the Applicant suffers from schizophrenia. As it manifested in relation to the Applicant, the illness was said to have been “severe, chronic, at times not responsive to treatment, and prone to rapid relapse.”[37]
[36] G13
[37] Ibid,172 [49]
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.[38] Amongst other things, Ms Lofthouse opined that:
(a)The Applicant’s test results were consistent with him having a generalised level of intellectual impairment placing him in the mildly intellectually impaired range on a scale of intellectual function.[39]
(b)The pattern of global impairments revealed in his test results suggested that the Applicant suffered from a developmental disorder, such as a mild intellectual disability.[40]
[38] G14
[39] G14,188
[40] G14,190-Ms Hothouse’s opinion that SGQV was intellectually impaired is echoed in a further report of a clinical neuropsychologist, Dr Vuletich of 30/11/17-G25
In August 2012, the Applicant was assessed as suffering from an intellectual disability rendering him eligible for services under Victoria’s disability legislation.[41]
[41] G11-22/8/12 letter from Department of Human Services (Vic); G18
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).
While for at least six months after the order the Applicant appeared to be progressing well he is then said to have 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.[42]
[42] Consequent on him breaching the order, in November 2015 the Applicant was re-sentenced, this time to 12 months imprisonment.
Despite his being the subject of judicial monitoring and a “justice plan,” roughly one year after the Applicant was convicted of armed robbery he was convicted of two charges of unlawful assault. There followed a string of further convictions, including theft, failing to answer bail, assaulting an emergency worker on duty and possessing a controlled weapon without excuse.
The Applicant was remanded in custody in September 2015 and re-admitted to Thomas Embling Psychiatric Hospital in December 2015[43] where he remained until July 2016.[44]
[43] G16-Thomas Embling discharge summary
[44] G12,156
Since being discharged from the hospital in July 2016, the Applicant has been in immigration detention.
DOES SGQV PASS THE CHARACTER TEST?
I am not satisfied that the Applicant passes the character test.
Under s 501 of the Act, a person does not pass the character test if, amongst other things, the person has a substantial criminal record.[45] The Applicant has such a record. He has been sentenced to a term of imprisonment of 12 months or more.[46]
[45] s 501(6)(a) Act.
[46] s 501(7)(c) Act.
In particular, on 28 April 2008, the Applicant was convicted in the County Court of Victoria of intentionally causing serious injury and sentenced to three years imprisonment.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
I am not satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.
In so deciding I have sought to (as I am required by s 499 of the Act to) comply with a written direction of the Respondent found in a document entitled “Direction No 79 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[47]
[47] Direction 79 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J
Compliance with Direction 79 requires that I consider whether to revoke the decision to cancel the Applicant’s visa “given the specific circumstances of the case.”[48] It also requires that I take certain considerations (where relevant)[49] into account, informed by certain principles.[50]
[48] Direction 79, cl 6.1(3) and 13(1).
[49] Direction 79, cl 8(1).
[50] Direction 79, cl 7(1).
44. Those principles are:[51]
[51] Direction 79, cl 6.3.
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
These principles not only inform the process by which I take the relevant considerations into account, they also provide a framework within which I should approach the Tribunal’s task in this proceeding.[52]
[52] Direction 79, cl6.2(3).
I turn now to the considerations which I am required by Direction 79 to take into account.
PART C CONSIDERATIONS - OVERVIEW
The relevant considerations are those set out in Part C of Direction 79.
Part C is divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia, and expectations of the Australian community.[53]
[53] Direction 79, cl13(2).
The other considerations include (but are not limited to) international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims, and extent of impediments if removed.[54]
[54] Direction 79, cl14(1).
The primary considerations are generally to be given more weight than the other considerations[55] and one or more primary considerations may outweigh other primary considerations.[56]
[55] Direction 79, cl8(4).
[56] Direction 79, cl8(5).
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration (so that, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations).[57]
[57] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32]
Protection of the Australian community
The protection of the Australian community from criminal or other serious conduct consideration is one that requires that regard be had to the Australian government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens.[58]
[58] Direction 79, cl13.1(1).
As applied in context, this means that I must have regard to a commitment which encompasses protection of the Australian community from harm as a result of criminal conduct by the Applicant, a non-citizen.
Taking this primary consideration into account requires that regard be had to two subsidiary considerations being, in the circumstances, the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[59]
[59] Direction 79, cl13.1(2).
Nature and seriousness of conduct
As I mentioned earlier, in 2008 the Applicant’s record of offending was said by His Honour Judge Pilgrim to be disgraceful. As I see it, that record is now even more troubling considering the relatively limited amount of time since 2005 that the Applicant has spent free in the community (ie, out of either hospital or prison).
The Applicant accepts that his criminal history is serious, involving violence over an extended period of time.[60] He was right to do so.
[60] A SFIC [52]
In summary, application of the factors which Direction 79 requires be taken into account in considering the nature and seriousness of a person’s conduct results in a characterisation of the Applicant’s offending as very serious.
In the context of this matter where (as will be seen later) there are non-refoulement obligations owed in respect of the Applicant, I need to go beyond a simple characterisation of his offending as very serious. This is because, under Direction 79, there is a requirement to carefully weigh non-refoulement obligations against the seriousness of offending.[61]
[61] Direction 79, 14.1(6)
There are gradations of very serious offending. For example, on the spectrum of very serious offending, I suspect that premeditated murder and rape would likely fall towards one end of the spectrum. Here, the Applicant has been convicted of (amongst other things) intentionally causing injury, intentionally causing serious injury (involving the stabbing of a victim), armed robbery and numerous assault charges.[62] On the Applicant’s behalf it is said that of “…25 offences against the person, [SGQV] has only been charged with 4 counts of offences actually causing injury, and 1 of causing serious injury.”[63]
[62] On the Applicant’s behalf it is submitted that some significance ought to be attributed to the fact that the assault charges were not brought under s31 Crimes Act 1958 (Vic). The implication is that that s31 charges were an alternative available to the prosecution, but a choice was made because the Applicant’s conduct was perceived to be insufficiently serious to warrant such an approach-see A SFIC [73b]. However, a s31 charge is not an alternative to unlawful assault; inherent in s31 is a requirement to establish an element additional to the fact of assault, such as an intent to commit an indicatable offence.
[63] A SFIC [73c]
As I see it, offending such as this (whether considered in the aggregate or by reference to certain of its components) ought be placed towards the upper end of the spectrum of very serious offending.
In this regard, on behalf of the Applicant it is said that several factors operate to reduce the seriousness of his offending; “his impaired mental state (reducing his moral culpability), his background of trauma, the passage of time since his offending, and his previous use of alcohol and illicit substances.”[64]
[64] A SFIC [53]-see also A SFIC at [68] where it is said to be important to note that the Applicant was intoxicated and experiencing auditory hallucinations at the time of offending. See also A SFIC [73e] where it is said that much of the Applicant’s offending occurred when he was experiencing effects of his schizophrenia or when he was intoxicated
While factors such as these might go to moral culpability or the risk of recidivism, as I see it, none of them operate to affect an assessment of the seriousness of the Applicant’s past offending.
It is said on the Applicant’s behalf, to be important to note that the events that led to his conviction for intentionally causing serious injury (in 2007) occurred prior to the identification of his intellectual disability and his diagnosis of schizophrenia, while the events (in 2011) that led to his armed robbery conviction occurred prior to the identification of his intellectual disability. [65]
[65] A SFIC [59]- it is said to be “important to note that both occasions of offending predated identification of the Applicant’s intellectual disability, and one his diagnosis of schizophrenia”.
Why this is important is not identified. I note, however, that it could be said that the Applicant continued to commit serious offences despite having his psychiatric condition identified and (at least to an extent) been subject to treatment. I also note that the Applicant would appear to have been diagnosed with schizophrenia (and, to an extent, treated) in 2006 when he spent roughly 9 to 10 months in a psychiatric hospital. This was before both sets of events.
In a similar vein, it is said that the Applicant came before the courts on six occasions, and was sentenced to a term of imprisonment on three occasions, after the identification of his intellectual disability and his diagnosis of schizophrenia.[66] The tenor of the comments seems to be that this is modest. relative to his overall history of 18 court appearances and 11 sentences of imprisonment. Modest it might be when so measured, but it is still a rather horrendous record given that the period to which reference is being made only commences in 2012 and for most of the time since then the Applicant has been either hospitalised or in detention.
[66] A SFIC [73a]
I turn now to the factors which Direction 79 requires that I take into account in considering the nature and seriousness of the Applicant’s conduct.
Those factors include:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.[67]
[67] Direction 79 cl13.1.1(1)(a).
Given his convictions for a number of crimes of violence, the Applicant’s offending is required by Direction 79 to be, and is, viewed very seriously.
(b)So viewed, the Applicant’s conduct falls within at least one of the general principles that forms part of the framework within which I should, under Direction 79, approach my task, being the principle that refers to an expectation of the Australian community that the Australian government should cancel the visa of a non-citizen if the non-citizen commits serious crimes.
The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.[68]
[68] Direction 79 cl13.1.1(1)(b).
It has not been contended, and nor does the material before me suggest, that this principle is of relevance in this proceeding.
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious.[69]
[69] Direction 79 cl13.1.1(1)(c).
The Applicant’s criminal history includes a number of crimes against police in the performance of their duties, as well as an assault on an emergency worker.
Again, this constitutes another reason to regard his crimes as, at least, serious.
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes.[70]
[70] Direction 79 cl13.1.1(1)(d).
As previously indicated, in the 12-year period from 2004 to 2016 the Applicant was sentenced to imprisonment on 11 occasions.
In terms of this factor, the sentence imposed for a crime can provide objective guidance as to the seriousness of the conduct involved (such as might be the case where a conviction is not accompanied by a sentence of imprisonment or a fine[71]).
[71] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [202].
The guidance provided by the frequent sentences of imprisonment imposed on the Applicant is to the effect that his offending has been consistent with a characterisation of it as very serious. The imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[72] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[73]
[72] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[73] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
On behalf of the Applicant it is contended that the sentence imposed on him in relation to each of what he characterises as his “index” offences (his intentionally causing serious injury[74] and armed robbery[75] offences) indicates that the Courts did not regard this offending as “one of the more serious examples of that offending.”[76]
[74] According to the Applicant the median sentence for those convicted of intentionally causing serious injury is 4 years, as opposed to his sentence of three years.
[75] Initially a community corrections order was imposed whereas, according to the Applicant, most persons convicted of armed robbery are given a custodial sentence.
[76] A SFIC [61][70]
First, offending of the nature of his index offences is very serious, irrespective of whether what occurred constitutes a serious example of that offending.
Second, while a conviction not accompanied by a sentence of imprisonment or fine might be suggestive of a more benign view of a person’s offending,[77] the sentence imposed in a particular case does not necessarily reflect the view taken as to the seriousness of the offending involved. Other factors come into play, such as matters personal to the offender.[78] Hence, the application of the Verdins principles[79] by His Honour Judge Pilgrim in sentencing the Applicant in 2008 in relation to his first index offence.[80] As to his second index offence (for which the Applicant was sentenced in 2012), as I see it, it is clear from the nature of the sentence (one that provided for implementation of a justice plan that was only available due to the Applicant’s intellectually disabled status) that it was structured to address matters personal to the Applicant.
[77] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [202].
[78] Halsbury’s Laws of Australia-130-17100 to 130-17150-
[79] R v. Verdins [2007] VSCA 102
[80] G4,58
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.[81]
[81] Direction 79 cl13.1.1(1)(e).
As revealed by his convictions, the Applicant’s offending has been frequent, sustained and repetitive, albeit that it does not reveal a trend of increasing seriousness. Indeed, according to the Applicant, the seriousness of his offending has noticeably decreased, and he has not committed any offending in over four years.
I accept the Applicant’s contention that the trend of his offending is one of decreasing seriousness if the assessment is made now with regard to the Applicant’s time, while free in the community and while in detention or hospital. However, if the assessment is made only by reference to the Applicant’s time while free in the community (which I suspect reflects the better approach given the context in which the assessment is being made), I reject his contention.
While no trend of increasing seriousness is revealed, it might have been suggested that the Applicant’s offending reflected a fundamental lack of respect for Australia’s law enforcement framework (of relevance to that general principle that forms part of the framework within which I should, under Direction 79, approach my task, being the principle that refers to an expectation of the Australian community that non-citizens will respect important institutions, such as Australia’s law enforcement framework). As I indicated earlier, in 2005, 2006, 2007 and 2015, the Applicant was convicted of a number of offences, including resisting police, failing to answer bail, assaulting police and contravening community corrections order charges.
I do not adopt this suggestion. On the Applicant’s behalf, it is submitted that his offences involving resisting police and assault on an emergency worker were a function of his health and potentially his intoxication, rather than an indicator of his attitude to authority.
While I do not necessarily accept this submission, I do not reject it; the view that it reflects is (as I see it) plausible.
(f)The cumulative effect of repeated offending.[82]
[82] Direction 79 cl13.1.1(1)(f).
Neither party made a substantive submission directed to this particular factor. The Respondent suggested that a consideration of the cumulative effect of the Applicant’s offending was such as to weigh against his application but did not descend into any description of that effect.
Nevertheless, as I see it, the sustained and repetitive offending of the Applicant would, cumulatively, have resulted (and clearly did result) in a significant and increasing amount of community resources being consumed, as well as a greater adverse community impact. Moreover, the more he offended the more members of the community came to be directly affected by his conduct.
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending.[83]
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).[84]
The Applicant did re-offend after being formally warned about the consequences of further offending in terms of his migration status.
By letter dated 5 August 2008[85] the Applicant was warned that any further criminal convictions “could result in fresh consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia…”.
On behalf of the Applicant, however, it was put (and I accept) that the warning letter was received by the Applicant while he was the subject of a secure treatment order in the Thomas Embling Psychiatric Hospital and that he had no appreciation of its contents. This reflects the Applicant’s evidence; “I got a letter about my visa. I signed it, but I didn’t know what it was. No one explained it to me.”[86]
Accordingly, in considering the nature and seriousness of the Applicant’s conduct, I do not consider that he was aware of and ignored any formal warning.
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.[87]
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
[83] Direction 79 cl13.1.1(1)(g).
[84] Direction 79 cl 13.1.1(1)(h).
[85] G22-a letter the receipt of which was acknowledged by the Applicant-G23
[86] Exhibit A1 [31]
[87] Direction 79 cl 13.1.1(1)(i).
The risk to the Australian community
I turn now to the second matter to which consideration ought be given in the context of the protection of the Australian community; the risk to the community should the Applicant commit further offences or engage in other serious conduct.
In considering that risk I am required by Direction 79 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should the Applicant engage in such conduct and the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending).[88]
[88] Direction 79 cl13.1.2(1).
As to the nature of harm to individuals should the Applicant commit further offences or engage in other serious conduct, based on his history of offending, it would involve loss of property and psychological harm (associated with violent conduct, threats and the Applicant’s propensity to carry and, on occasion, use weapons).[89] That harm would potentially befall random members of the community as well as associates.[90]
[89] As for physical harm it was said on SGQV’s behalf that the prospect of it was limited -A SFIC [82]-No explanation for this contention was apparent, however.
[90] The victim of the first index offence was an associate of the Applicant. The victim of the second index offence was a person unknown to the Applicant
As to the nature of harm to the Australian community should the Applicant commit further offences or engage in other serious conduct, it is said on behalf of the Applicant that his offending in the past has not resulted in serious harm to the community.[91] I note, however, that when individual members of the community are harmed the community is harmed. I also refer to the comments I made earlier in the context of considering the cumulative effect of the Applicant’s repeated offending. It is clear that significant community resources have been deployed in the past to deal with the Applicant’s offending (albeit that it is difficult to distinguish between resources deployed to deal with offending and those deployed to deal with his psychological issues).
[91] A SFIC [85]
On behalf of the Applicant it is said that the nature of the harm that would ensue were he to commit further offences would be subject to management. I do not understand this contention. It seems to me, instead, that what is being put is that the risk of the Applicant re-offending is manageable (and I will turn to that proposition shortly).
As to the likelihood of the Applicant committing further offences or engaging in other serious conduct, on the material before me I not satisfied that it is unlikely. I am satisfied, however, that the risk of him re-offending is a real one which is significant.
Counsel for the Applicant took me to a paragraph of Mortimer J’s decision in Splendido.[92] There Her Honour had extracted from a decision of the Victorian Court of Appeal[93] comments of Maxwell and Weinberg JJA to the effect that “the prediction of future dangerousness, if it is to be attempted at all, is a matter for expert opinion,” and judges do not have the expertise to assess the likelihood of an offender re-offending.
[92] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [72]
[93] RJE v Secretary to the Department of Justice (2008) 21 VR 526 at [16-17]
Counsel’s purpose in taking me that paragraph in Spledido was not spelled out. Insofar, however, as it was being contended that I cannot arrive at a view as to the likelihood (or risk) of the Applicant committing further offences or engaging in other serious conduct other than on the basis of expert evidence, I reject the contention.
First, simply by referring to the Victorian Court of Appeal decision Mortimer J should not be taken as endorsing such a contention (at least as it would apply in relation to the Tribunal undertaking its role under s501CA(4) of the Act in compliance with Direction 79) . Instead, as will be discussed later, as I see it, Her Honour cited the decision in support of her proposition that a probative basis is required for a conclusion as to likelihood or risk, a requirement not met by mere reliance on an historical record of offending. Second, I note that Court of Appeal decision would appear to have concerned the requirements of certain legislation, legislation which was said to recognise the need for expert opinion in predicting “future dangerousness”. It is not contended that such a matter is recognised in either the Act or Direction 79. Third, as I see it, the Tribunal has a statutory duty to comply with Direction 79. In order to fulfil that duty, I am required, amongst other things, to come to a view as to the likelihood (or risk) of the Applicant re-offending or engaging in other serious conduct. That duty cannot be abandoned because of the absence of acceptable opinion evidence.
This is not to suggest that I am free simply to speculate as to the likelihood (or risk) of the Applicant re-offending or engaging in other serious conduct. Any view I arrive at as to that likelihood (or risk) ought be based on probative material.
That probative material includes, but does not comprise, the Applicant’s history of offending. This is because, as was said in Guo “… proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.”[94]
[94] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574.
There is, however, no direct analytical bridge between a finding that past conduct has been criminal and a conclusion that there is a risk of re-offending. Establishing that a particular type of conduct has been engaged in by a person is not a sufficient basis for a finding that there is a risk of that type of conduct again being engaged in by the person. [95] According to Mortimer J in Splendido[96] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. More needs to be shown if over-valuing personality-based explanations and under-valuing situational based explanations for conduct is to be avoided.[97].
[95] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65] “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”
[96] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
[97] See Hughes v R [2017] HCA 20 at [70-72] per Gageler J (in dissent).
What that “more” includes is revealed by decisions in cases such as Guo.
In Guo it was said that“…[t]he extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.”[98]
[98] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575.
In Hughes[99] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated at [154] that … “[e]vidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence…”.
[99] Hughes v R [2017] HCA 20 at [154].
In Splendido[100] Mortimer J said that “[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.”
[100] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].
Hence, facts need to be identified about the Applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the Applicant re-offending as significant. I now endeavour to do so.
The circumstances of the Applicant’s past offending suggest an ingrained habit and reveal a consistent pattern.
In terms of habit, the Applicant’s offending has been frequent, repetitive and persistent over a long period. It commenced relatively shortly after his arrival in Australia and continued whenever he was free in the community from hospitalisation or imprisonment.
In terms of pattern, it reflects the habit. The Applicant is released into the community from custody (whether from prison or as a patient of the Thomas Embling Psychiatric Hospital) and relatively shortly thereafter (or, at least relatively shortly after he ceases to be the subject of a compulsory treatment regime while in the community) he re-offends. This pattern applies even if regard is only had to the period after the Applicant started receiving treatment for his schizophrenia. As to that period:
(a)In October 2006 the Applicant is released from the Thomas Embling Psychiatric Hospital and re-offends in June 2007.
(b)In January 2010 the Applicant is released on parole, the conditions of which were said to have allowed for therapeutic supports to be offered to him in the community, under supervision. His period of parole expired in September 2010. The Applicant re-offended in May 2011.
(c)The Applicant was then remanded and subsequently released into the community on bail in August 2011, albeit as a compulsory patient subject to a treatment order. That order was followed by a Community Corrections Order imposed on the Applicant when he was convicted of armed robbery in November 2012. Despite his being the subject of judicial monitoring and a “justice plan” under the order, roughly one year after the Applicant was convicted of armed robbery he was convicted of two charges of unlawful assault. There followed a string of further convictions, including theft, failing to answer bail, assaulting an emergency worker on duty and possessing a controlled weapon without excuse.
It seems clear that the Applicant tends to be violent when his schizophrenia becomes symptomatic. The relationship between the Applicant’s offending and his schizophrenia is made patent in the Coffey report. “When acutely unwell SGQV has suffered command hallucinations and persecutory delusions and his behaviour has become violent…”.[101]
[101] Coffey report G13,172
The upshot of this identified relationship is an opinion which Mr Coffey expresses concerning the risk of the Applicant re-offending. In particular, according to Mr Coffey, “[SGQV’s] continuing adherence to pharmacotherapy and regular attendance and support from a mental health team is a pre-condition for his rehabilitation and the avoidance of re-offending...Nothing short of an intensive well-coordinated long term program of treatment and rehabilitation will prevent further offending.”[102] In a similar vein (albeit expressed more positively), a Dr Brayley[103] opined in May 2017, that “[i]t is possible that with an appropriate management plan that ensured that he received community support services, regular medication and abstained from substances, [SGQV] could be released into the community with risk minimised.”
[102] IBID, 172-173 [63]; 177 [69]
[103] Said to be the Surgeon General of the Australian Border Force-G36,330
This suggests that continuing adherence to pharmacotherapy is a necessary pre-condition if re-offending is to be avoided (albeit that it does not suggest that such adherence is a sufficient condition, an issue to which I will return shortly). There is, however, a significant risk that this pre-condition would not be satisfied in the case of the Applicant, once he is released into the community. That risk exists because, as I see it, the Applicant lacks insight into his illness and is reluctant to take the pharmaceutical drugs (medication) prescribed by his treating health practitioners as part of the treatment of his condition. (That reluctance is of particular significance in the circumstances given that the Applicant’s illness is said to be subject to rapid relapse. Hence, even a short-term interruption in his medication may have material consequences.[104])
[104] This analysis is lent some credence by the description of events leading up to The Applicant’s offending in May 2011 (the armed robbery). Ten days prior to the offending the Applicant was said to have missed his medication for three or four days. Phone contact was then made by his case manager. On the sixth day before the offending the Applicant failed to attend an appointment because he said he was ill.
That lack of insight and reluctance to take medication prescribed:
(a)is evident from the Applicant’s failures to adhere to his pharmacotherapy when free in the community and not subject to compulsion (as was the case in early 2007 and after expiry in September 2010 of his parole conditions).
(b)is evident from his failure to maintain long term adherence to his pharmacotherapy even when subject to compulsion (as I infer was the case in relation to the four year community correction order imposed in November 2012, given his conviction for contravening that order and his frequent offending on and from at least November 2013 until his re-incarceration in September 2015).
(c)is a theme common to health professionals and others asked to comment on the Applicants condition. In a report to His Honour Judge Pilgrim in 2008 a psychiatrist, Dr Wood, commented, in effect, that the Applicant only received treatment because of the insistence of his treating team, had poor insight into his mental health and would not actively seek treatment if left to his own devices.[105] In around 2011 (as mentioned earlier) Waratah Area Mental Health Service assessed the Applicant as lacking insight into his illness. In 2012 Mr Coffey in his report noted that the Applicant “lacked understanding of his schizophrenic illness and at times denied that he had ever been mentally ill…He expressed ambivalence and at times direction opposition to receiving ongoing medication.”[106] Also in 2012, in a psychiatric report not before me but referred to in a neuropsychological report found at G14, the Applicant is said to have stated that the injections “f..k” him up and that his preference is for oral medication (albeit that it is said that he has experienced difficulty complying with his oral medication regime).[107] In September 2016 the Applicant refused an injection partly because he felt he did not need it. In October 2016 he agreed to continue with injections but only if the dosage was reduced.[108] In December 2016 the Applicant refused an injection of a new type of medication.[109] In December 2017 a psychiatrist, Dr Febbo, noted that the Applicant’s “compliance with antipsychotic medication appears to be somewhat erratic and this is also likely to reflect limited insight.”[110] In written evidence, the Applicant related being shackled when in detention “again” if he refused his injection.[111] In oral evidence, the Applicant advised that he had been shackled and taken to the Northern Hospital (in Melbourne) around three times to be injected with medication, because of his refusal to accept the medication voluntarily.
[105] G4,57
[106] G13,171
[107] G14,182
[108] G21,240
[109] G25,255
[110] G27,277
[111] Exhibit A1 [36]
It is put that the Applicant now recognises and accepts the need for treatment. In his written evidence the Applicant refers to his illness and his desire to seek treatment.[112] Reference is also made to a December 2016 document in which a mental health nurse noted a willingness to seek treatment and support.[113]
[112] Exhibit A1 [14]
[113] G25,257
First, while the Applicant might now accept that he has some mental health issues, this does not mean that he understands, or has insight into, what those issues are. Indeed, it would seem from his evidence that he does not. According to the Applicant “[s]ince getting diagnosed, no one has explained to me what my conditions mean...”.[114]
[114] Exhibit A1 [23]
I note that in August 2016, roughly a decade after the Applicant first received treatment for his schizophrenia, when asked what medication he took for the condition his response was “TBA”.[115] It would seem that he currently remains unaware of the details of his treatment.[116]
[115] G9,140
[116] Exhibit A1 -while the Applicant is aware that his treatment involves taking a tablet and having injections, he does not know what the treatment is- [28]
Second, a willingness to accept treatment is not the same thing as a willingness to accept the medication prescribed by his treating health practitioners. It is clear from the matters mentioned earlier that the Applicant is, or is on occasion, reluctant to take the prescribed injectable medication. It is also clear that the Applicant is unhappy with his current medication and, on release into the community, would seek to change it (albeit that no medical advice was identified to me which outlines the nature of the changes sought by the Applicant or the appropriateness of any changes). In his evidence the Applicant suggested that the first thing he would do when released into the community would be to get “better treatment”;[117] once free in the community he “would be able to get treatment that suits me.”[118] A willingness to accept treatment that suits the Applicant is not the same thing as a willingness to accept treatment prescribed by his treating health practitioners.
[117] Exhibit A1 [16]
[118] Exhibit A1 [29]
Dr Brayley spoke of a management plan that ensured that the Applicant would receive regular medication. An email from Dr Brayley in July 2017 casts some light on what he might have had in mind in referring to such a plan. In the email Dr Brayley noted that “… patients with a history of violence associated with psychosis are often placed on community treatment orders to ensure ongoing antipsychotic drug treatment while guardianship orders can be made to ensure acceptance of support services.”[119] (It might be that herein lies the source of the proposition that the nature of the harm that would ensue were the Applicant to commit further offences would be subject to management.)
[119] G38
While I note the potential for community treatment orders to be made it is not put to me that, on release into the community, the Applicant would again become the subject of such an order[120] (noting that the Applicant has previously been the subject of an order apparently made as part of his bail arrangements in August 2011). As for guardianship, I note that the Applicant was recently successful in opposing a guardianship application[121] and it is not being put to me that any fresh application is to be made.[122]
[120] G36,332
[121] G30-December 2019
[122] G36,332
I note that, in any event, the Applicant’s ongoing adherence to pharmacotherapy may well not address the significant risk of the Applicant re-offending (albeit that it would clearly mitigate that risk). Even when his illness is being treated the Applicant shows signs of aggression, noting that his illness is at times unresponsive to treatment[123] and that his executive functions (“necessary for appropriate, socially responsible, effective and gaol directed behaviour”) appear to be “significantly compromised”.[124]
[123] G13,172; G27,277
[124] G26,268
In this regard, records indicate that while in the Melbourne Assessment Prison the Applicant was verbally and physically aggressive.[125] In relation to his time in immigration detention, the Applicant recognises that his behaviour has not been as he would wish.[126] Records suggest incidents involving him occurred while he was in detention across 30 separate days. The description of those incidents include a number of allegations of abusive or aggressive behaviour, all but three of which are said to have occurred in 2019.[127] In early 2017 a psychiatrist, apparently engaged by the entity providing medical services to detainees, was said to have opined that the Applicant has an “ongoing risk of impulsive and violent behaviour.”[128] In December 2017 another psychiatrist, Dr Febbo, noted that there had been incidents when the Applicant had continuing psychotic symptoms despite being on antipsychotic medication, and that there has been a limited response to such medication.[129]
[125] A SFIC [80]; G16
[126] Exhibit A1 [48]
[127] G19; A SFIC [81]
[128] G21,240
[129] G27
It is said on the Applicant’s behalf that were he to be now released into the community his circumstances would differ materially from those that obtained when he was released into the community in the past.
It is suggested that the Applicant has now severed his reliance on alcohol and illicit drugs as a result of his enforced abstinence over the lengthy period of his detention.
While I hope that is right and that the Applicant will not again succumb to substance abuse, hope is not a basis on which to conclude that his risk of re-offending is ameliorated. This is in a context where previous (sometimes lengthy) periods of enforced abstinence (in the context of him being hospitalised or imprisoned) have not prevented the Applicant from again slipping into what would appear to be a cycle involving excessive alcohol consumption and the use of illicit drugs.
It is said that there are now significant and impressive supports in place to assist the Applicant in the community (the “now” being suggestive of supports not previously available to the Applicant).
First, certain family members have indicated a preparedness to assist the Applicant. This is new (and in the case of the one family member who gave oral evidence, dates only as from June this year). For quite some time the Applicant has had little or no family support.[130] He had been evicted by his cousin from his accommodation apparently in the early 2000s, at a time when, according to the Applicant, his “…family were not there for me. I think they had problems of their own, and they were rightfully upset with me because I was badly behaved. They just thought I was a bad person.”[131]
[130] G14,182
[131] Exhibit A1 [12]
Support for the Applicant is offered by one of his brothers,[132] and three of his cousins.[133] The Applicant’s brother offers to provide accommodation to the Applicant on his release to the community and to help “him with everything, from public transport to getting a doctor.” The Applicant’s cousin who is a nurse offers to assist the Applicant to get the right help for his condition.
[132] Exhibit A3
[133] Exhibits A2 and A4, and G37.
A difficulty I have with the offer of family support is that, subject to the matters just mentioned, it is generally non-specific as to the nature of the support which the family members are prepared to provide, whether in terms of financial, employment or social support. Further, insofar as specific types of support are being offered, the provision of similar types of support to the Applicant in the past (such as accommodation services provided by the Salvation Army) has not operated to prevent him re-offending. Moreover, while the availability of this family support does serve to distinguish the position that would apply were the Applicant to be released now into the community from that which applied when released into the community in 2006, 2010, 2011 and 2012; and while I have no reason to doubt the sincerity of the sentiments expressed by the Applicant’s family members, the absence of support in the past does raise a question as to the strength of the commitment to provide the extensive, ongoing support that he would seem likely to require.
In light of these matters and given the nature of the facts and circumstances on which I rely to support my assessment of the Applicant’s risk of re-offending, I am unable to conclude that the family support said to be available to the Applicant would affect materially the extent of that risk.
In addition to support from family members it is said that support from a number of government, community and other organisations would be available to the Applicant upon his release into the community. An extensive list of government services and institutions from which support might be forthcoming (such as the police and hospitals) has been provided on the Applicant’s behalf.[134]
[134] G36,331-332
Much of this non-family support has been available to the Applicant, and some of it has been availed of by him, in the past (such as support from the Salvation Army,[135] support from the Commonwealth government in the form of the disability support pension and disability services support from the Victorian government[136] ). The fact that this support would not appear to be of recent origin reduces the weight I might otherwise be minded to give it. As it has not been effective in the past to prevent the Applicant offending, it is difficult to be confident about its future effectiveness in that respect.
[135] G17,198
[136] Noting the provision of disability support services to the Applicant under Victorian disability legislation in connection with the community correction order imposed in November 2012. The Department of Health and Human Services, whose case management of the Applicant is said to have only closed due to his detention and who can accept a referral upon his release-G18-see A SFIC 87e- there reference is made to a program ‘Absolutely everyone 2017-2020’ established since the Applicant was last in the community-there is, however, no identification as to why the availability of this program is material to an assessment of re-offending risk.
The Australian Red Cross has suggested that the Applicant “might be eligible” for support in the form of a monthly assessment in relation to the receipt of emergency relief.[137]
[137] Exhibit A5
In terms of supports not previously available (or at least not previously availed of) I mention:
(a)A statement made on behalf of the Somali Australian Council of Victoria, in which it is said that, if the Applicant is released into the community, he will be engaged in community programs aimed to enhance his full and meaningful community participation, with the Secretary of the Council offering to provide mentoring and support on a weekly basis.[138]
(b)A statement made on behalf of the Somali Community Inc., in which it is said that the organisation would provide sporting and social activities, as well as mentoring opportunities for the Applicant; and would refer him to local employment support services so he can find appropriate employment. [139]
[138] Exhibit A7
[139] Exhibit A6
While I do not doubt the general value of the supports these organisations make available, and are prepared to make available to the Applicant, again, given the nature of the facts and circumstances on which I rely to support my assessment of the Applicant’s risk of re-offending, I am unable to conclude that they would (assuming he would avail himself of them) affect materially the extent of that risk.
Another form of support said not to have been previously available to the Applicant is that offered by participation in the National Disability Insurance Scheme. It is said that the Applicant would almost certainly be eligible to participate in the Scheme.[140] An organisation, First Support Australia Disability Services, has assigned a co-ordinator who has already submitted the Applicant’s application to participate in the scheme, and who will prepare a draft “NDIS Plan”.[141]
[140] A SFIC-
[141] Exhibit A8
There are a number of aspects of the Scheme but, if the Applicant were to become a participant, it would involve finalisation of a participant plan which would include details of reasonable and necessary supports to be funded under the Scheme.[142]
[142] National Disability Insurance Scheme Act 2013 (Cth), s33(2)
Nothing before me suggests that the supports that might be made available to the Applicant were he to become a participant in the Scheme would differ from those that would have been available to him prior to the Scheme in a way material to the assessment of his risk of re-offending.
The Applicant is said to be remorseful for his past conduct. Indeed, in material lodged with the Tribunal and at the hearing of this proceeding, the Applicant frequently, and (I accept) sincerely, expressed remorse for his past conduct. In this regard, a person truly remorseful for certain conduct might be less likely to repeat it.
The Respondent contended that the Applicant could not be said to be truly remorseful for his past conduct given the difficulty he experienced at the hearing of this matter in remembering the specifics of much of his offending.
I have some difficulty in understanding the logic of the Respondent’s contention. But even if it is correct and the Applicant is not truly remorseful for his past conduct, I do accept that, were he to be released into the community, he might now hesitate before making a conscious decision to re-offend. As I see it, the Applicant is very much alive to the potential consequences for his right to remain in Australia were he to be released into the community and continue to engage in criminal conduct.[143]
[143] Exhibit A1 [52]” I am too scared to let myself do something that will make me come back here “
The possibility of that hesitation does not, however, translate into a material reduction to the extent of the risk of re-offending which the Applicant represents, were he to be released into the community. This is because the effect which either remorse or the awareness of consequences has on the likelihood of offending depends on the application of conscious, reasoned, decision-making. Insofar as the material before me contains a description of his past offending, not much, if any of it could be said to reflect that type of decision-making. In what is described as the Applicant’s two index offences, he was clearly mentally unwell and, at least in the latter one, heavily intoxicated.
Lastly, it is said on the Applicant’s behalf that he has, on multiple occasions, been assessed as presenting a low risk to others. Reliance was placed on two December 2016 documents. In terms of risk of harm to others, in the first document it was said “Nil elicited currently or stated” while in the second it was said “Low but this may escalate if his paranoia increases”. Given the terms in which these statements were made (and the circumstances in which they were made, i.e., while the Applicant was in detention), neither appears to be material to an assessment of risk of re-offending on release into the community.
Conclusion
I have found that the Applicant’s offending has been very serious, frequent, repetitive and sustained.
Should he commit further offences or engage in other serious conduct, the likely harm would entail loss of property, psychological harm and physical harm.
As to the likelihood of him committing further offences or engaging in other serious conduct, I am not satisfied that it is unlikely. I am, however, satisfied that the risk of him re-offending is significant.
The result of this is that the protection of the Australian community consideration weighs heavily against me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The second primary consideration which I am required by Direction 79 to take into account is the best interests of minor children in Australia. I am required to determine in relation to each relevant child whether revocation of the visa cancellation decision is in his or her best interests.
It is not contended by either the Applicant or the Respondent that the interests of any minor child in Australia is affected or would be affected by revocation of the visa cancellation decision.
As such, in this proceeding, the consideration concerning the best interests of minor children in Australia weighs neutrally.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The third primary consideration which I am required by Direction 79 to take into account is “expectations of the Australian community”.
The enquiry which this consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the government deems the community’s expectations to be. The content of the deemed expectation is to be discerned by construing the relevant clause of Direction 79 (cl 13.3) itself.[144]
[144] FYBR at [68].
In Direction 79 it is said that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of the non-citizen.
Essentially, and having regard (in particular) to what are said to be community expectations in certain of the framework principles to which I previously referred, this reflects “a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.”[145]
[145] FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR) at [75]. See also at [96] where it is suggested that the expectation is consistent with the framework principle that the “Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”.
In the result:
“…community expectations are simply, and informally, expressed as follows: ‘If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.… 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. That is why the decision-maker must assess what is “appropriate” in the particular circumstances.”[146]
[146] FYBR at [101]-[102]
As the Applicant has committed what is regarded in Direction 79 as serious crimes, a principle provided for in Direction 79 which informs the process by which I take the relevant considerations into account suggests a deemed expectation of the Australian community that the decision to cancel the Applicant’s visa not be revoked.[147]
[147] Direction 79, cl6.3(2)
Hence, the community expectations consideration weighs against me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.
As recognised in FYBR, however, the weight to be attached to this consideration may vary, depending on what is appropriate in “the particular circumstances of the character assessment”. It is clear that the character assessment to which reference was made in FYBR is one which harks back to Direction 79’s first primary consideration given that it is said to be based on the “commission of an offence or the risk that an offence will be committed”.
Hence, in this matter, of relevance to such a character assessment are my conclusions concerning the nature of the Applicant’s offending and the risk of him re-offending.
As I have said, the Applicant’s offending has been very serious and tends towards the upper end of the spectrum of such offending. As for risk of re-offending, it is significant.
These conclusions suggest that, in the circumstances of the Applicant’s character assessment, it would be appropriate to accord to the community expectations consideration significant weight.
Two other process-informing principles provided for in Direction 79 are of particular potential relevance to an assessment of weight, however, one which operates in reduction of the weight otherwise attributable to the community expectations consideration and one which, while superficially potentially relevant, on analysis, should have no effect.
The Applicant has resided in Australia for most of his life. This circumstance is suggestive of it being appropriate to accord to the community expectations consideration lesser weight than might otherwise have been the case given the general principle which provides for a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of his or her life.[148]
[148] Direction 79, cl6.3(5)
Another circumstance of potential relevance concerns a related issue. The Applicant has been in Australia for around 19 years. This circumstance might have been suggestive of it being appropriate to accord to the community expectations consideration a further reduction in the weight than might otherwise have been attributed to it if the Applicant had been making a positive contribution to the Australian community. This is because of the general principle which has the length of time a non-citizen has been making a positive contribution to the Australian community as a consideration in the context of determining whether the non-citizen’s visa should be cancelled.[149]
[149] Direction 79, cl6.3(7)
On analysis, this other circumstance does not affect the weight to be attributed to the community expectations consideration. While perhaps unsurprising given his traumatic upbringing, the fact (as I see it) remains that the Applicant has not made a positive contribution to the Australian community for any material length of time. For almost all of his time in Australia he has been unemployed[150] and there is no material before me suggestive on any non-employment related positive contributions (other than members of his family suggesting that he was, initially, supportive of them).[151]
[150] G14,181-there it is suggested that he has not worked since aged 18. At G12, 152/G13,166 reference is made to six months work at a chicken factory in 2002 and 2003. At G9, 140 it is suggested that he worked as a dishwasher in 2006/2007 but in oral evidence he denied this.
[151] I note that there is some evidence of the Applicant not contributing to community organisations-see G13,167 where it is noted that the Applicant does not participate in Somali or Islamic community events.
Conclusion
The consideration concerning the expectations of the Australian community weighs against a finding that there is another reason to revoke the decision to cancel the Applicant’s visa. It does so to a moderate extent despite the particular circumstances of his character assessment given the ameliorating effect of his long-term presence in Australia.
OTHER CONSIDERATIONS
The considerations which I am required by Direction 79 to take into account are, as mentioned earlier, divided into primary and other considerations.
Having addressed the primary considerations I turn now to the other considerations which, paraphrased, entail a consideration of international non-refoulement obligations; strength, nature and duration of the Applicant’s ties to Australia; the impact of non-revocation of the Applicant’s visa on Australian business interests; the impact of non-revocation of the Applicant’s visa on victims and the extent of impediments if the Applicant is removed from Australia. This list is not exhaustive, and the considerations need only be taken into account where relevant.
International non-refoulement obligations
A number of judicial decisions appear to recognise the existence of a policy which would operate to prevent refoulement in breach on non-refoulement obligations. For example, in:
·BDQ19[198] Kerr J stated, in relation to a person in respect of whom non-refoulement obligations are owed, “Australia ultimately will not refoule such a person”.
·Sowa[199] Jagot, Bromwich and Thawley JJ noted that the applicant there had not referred to what was characterised as Australia’s practice of not returning a person to a place if non-refoulement obligations are owed.
[198] BDQ19 v Minister for Home Affairs [2019] FCA 1630 at [68]
[199] Sowa v Minister for Home Affairs [2019] FCAFC 111 [43] where it is said “In contrast to the position in the Applicant, there is no reference in the representations to Australia’s practice of not returning a person to a place if non-refoulement obligations are owed and there is the potential consequence of indefinite detention.”
I note that the refoulement of the Applicant in the face of refoulement obligations owed in respect of him would reflect a failure by Australia to respect obligations it owes to other nations. As such, it could only affect adversely Australia’s “reputation and standing in the global community”[200] or its “reputational interests.”[201]
[200] Ali v Minister for Home Affairs [2020] FCAFC 109 at [91]
[201] Hernandez v Minister for Home Affairs [2020] FCA 415 at [63]
I was taken by counsel for the Applicant to the recent decision of Bromwich J in AJL20.[202] His Honour had to consider whether the detention of a person was unlawful where there had been a failure to remove the person from Australia as soon as reasonably practicable due to non-refoulement obligations being engaged. It was held that the person’s detention was unlawful.
[202] AJL20 v Commonwealth of Australia [2020] FCA 1305
That decision suggests that, if his visa cancellation decision is not revoked, the Applicant would be refouled as soon as practicable.
That suggestion is reinforced when regard is had to the Full Federal Court’s decision in AQM18.[203] There it was held to be unnecessary for a decision-maker to consider the consequence of indefinite detention because indefinite detention “… was not a possibility. It was not a possibility because… the effect of s 197C was that the appellant was to be refouled notwithstanding that Australia owed the appellant non‐refoulement obligations.” [204]
[203] AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27
[204] Ibid at [25]
Whatever the position in relation to refoulement in the face of subsisting non-refoulement obligations, it remains the case that refoulement in the case of the Applicant would presently be unlikely were his visa cancellation decision not revoked.
Consequences should the Applicant not be returned to Somalia despite non-revocation?
If the Applicant’s visa cancellation decision is not revoked and if, as I have concluded, refoulement is presently unlikely, the Applicant would remain in detention (subject to the outcome of any potential protection visa application and to the possibility of exercise of ministerial non-compellable powers found in provisions such as s 195A of the Act).
Him remaining in detention will have adverse consequences for him.
Generally, the Applicant would continue to be denied freedom of movement. His capacity to liaise with family and friends would be constrained (especially in a COVID-19 context), as would his capacity to implement any plans he might have had for his future.
Moreover, the Applicant’s ongoing detention would be likely to have an adverse effect on his mental health. In this regard:
·In 2008 it was contended that a person suffering the Applicant’s mental health condition ought not be imprisoned but, instead, should be in a hospital.[205]
·In the Coffey report of 2012 it is contended that a prison environment probably contributed to the Applicant becoming unwell on a number of occasions and that there are strong grounds to believe that imprisonment is a more difficult experience for the Applicant than it is for someone without his mental disorder. [206]
·In or around March 2017 a psychiatrist is said to have noted, in relation to the Applicant, that “without specialist intellectual disability and rehabilitation services, he will become more impaired with ongoing detention.”[207] It is not put by the Respondent that such services are available to the Applicant in detention.
·In or around May 2017 an officer of the Respondent’s department, relying on the Coffey report, noted that “Ongoing detention in a prison-like environment, such as an immigration detention centre is likely to have an adverse [sic] on [the Applicant’s] mental health.”[208]
[205] G4,58
[206] Coffey report, G13, 175
[207] G21,240
[208] G38,351
Consistent with the proposition that ongoing detention would be likely to affect adversely the Applicant’s mental health I note there has been a number of self-harm incidents involving the Applicant. In 2017 he disclosed to a neuropsychologist “… a history of self-harming behaviour whilst in jail in Victoria. Specifically, he said that he had cut his arms on two separate occasions and he had considered cutting his neck. He could not recall whether these had been attempts to end his life, though he believed that both episodes had been related to (command) hallucinations.”[209] In the same year to a psychiatrist the Applicant said “that he has only ever made attempts on his life, or self-harmed, in prison and never in detention. In prison he has harmed himself “a lot of times.””[210] Despite this statement it is clear that the Applicant has engaged in self-harm on a number of occasions while in detention.[211]
[209] G26,264
[210] G27,273
[211] G19- 204,205, 211
In concluding that the Applicant’s ongoing detention would be likely to adversely affect his mental health I am not concluding that his mental health would necessarily be better were he to be free in the community. It is clear from his history that, on occasion, the Applicant has suffered severe relapses in his mental health condition while free in the community.
Conclusion
Non-refoulement obligations are owed in respect of the Applicant.
Should the Applicant be returned to Somalia, there is a real risk of him suffering significant harm on account of, at least, his membership of a particular social group, being people who suffer from a mental illness.
I do not consider that the Applicant’s removal from Australia and return to Somalia to be a likely consequence of a non-revocation decision, at present.
Instead, the more likely consequence of such a decision is that he would remain in detention. Detention carries with it a number of adverse consequences for the Applicant.
In the result, this consideration weighs in favour of there being another reason to revoke the Applicant’s visa cancellation decision and does so to a significant extent.
Strength, nature and duration of ties
In the context of this consideration, Direction 79 requires that regard be had to two further considerations.
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has resided in Australia for around 19 years, having arrived here aged 15. He started offending roughly three years after his arrival in Australia, aged 18.
For the reasons expressed earlier, as I see it, the Applicant has not made a positive contribution to the Australian community for any material length of time.
He would not appear to have strong family, community or social ties to Australia.
As for family ties, the Applicant has eight relatives in Australia four of whom (not including two of his siblings or his aunt) provided material in support of his application. From that material (and other material before me[212]) it would appear that the Applicant had very little to do with his family for quite some time and that he only re-engaged with certain of his family members recently. (A cousin who provided oral evidence suggested that this re-engagement, at least for her, occurred around June of this year.) The Applicant recounts being “kicked out” of his accommodation by his cousin and states that “[b]ack then, my family were not there for me. I think they had problems of their own, and they were rightfully upset with me because I was badly behaved. They just thought I was a bad person.”[213] A goal of the Applicant is, on release into the community, to strengthen his family connections.[214] While he is in contact now with family members by phone “… for a long time they didn’t know what happened to me. We have a better relationship now than before. I want to make things up to my family.”[215]
[212] I note that in 2012 it was said that The Applicant had little or no family support-G14,182
[213] Exhibit A1 [12]
[214] Ibid [17]
[215] Ibid [55]
While his ties to his family in Australia do not appear to be particularly strong it is said that non-revocation of his visa cancellation decision would have a devastating effect on his family.[216] In oral evidence the concern about non-revocation appeared to be more of a concern about refoulement to Somalia and the likely materially adverse consequences for the Applicant on return to Somalia. As I indicated earlier, I do not believe refoulement to be presently likely should his visa cancellation decision not be revoked.
[216] See in particular G37
As for community ties, while the Applicant has been offered support by Somali community organisations there is no material before me suggestive of him having any ties to such (or any other community) organisations.
I note that there is no material in support of the Applicant’s application from anyone with whom the Applicant mixed socially. The position now would seem, therefore, to reflect that subsisting in 2012 when the Applicant was said to have developed few enduring relationships since arriving in Australia.[217]
[217] G13,167
In light of the foregoing, while the strength, nature and duration of ties consideration weighs in favour of revocation of the Applicant’s visa cancellation decision, it does so only to a slight extent.
Impact on Australian business interests
Direction 79 requires that I consider the impact on Australian business interests if the Applicant’s visa cancellation decision is not revoked, but noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Given the absence of material before me of relevance to this consideration, it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel the Applicant’s visa.
Impact on victims
Direction 79 requires that I consider the impact of a decision not to revoke the decision to cancel the Applicant’s visa on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims where that information is available and the Applicant has been afforded procedural fairness.
Given the absence of material before me of relevance to this consideration it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel the Applicant’s visa.
Extent of impediments if removed
In the circumstances, Direction 79 requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to Somalia, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Somalia), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in Somalia.
If removed from Australia to Somalia, the Applicant will face extensive impediments in establishing himself and maintaining basic living standards, given his health issues, likely cultural barriers and the likely paucity of support (be it social, medical or economic) that would be available to him.
The Applicant has lived in Australia for most of his life and left Somalia when a young boy. He is unlikely to be culturally attuned and his intellectual disability would likely impair his ability to adapt.
While a young man, the Applicant’s limited history of employment (discussed earlier) suggests that he has no particular skills that he could bring to bear that would enhance his employability.
As for the impediments which the Applicant may face because of his schizophrenia, I refer to the earlier discussion in the context of non-refoulement obligations.
Specifically, in terms of the availability of medical support, it would seem unlikely that the Applicant would be able to obtain meaningful access. I have outlined earlier the lack of mental health services in Somalia. Health services more generally would also appear to be in dire straits. According to a terrorism monitoring organisation May 2020 report:
More than 14 years of al-Shabaab violence has destroyed the country’s health system, including hospitals, health centers, and dispensaries.[218]
[218] Exhibit A19
Without access to medical services any medical conditions from which the Applicant suffers are likely to only get worse. The Applicant’s capacity to establish and maintain basic living standards would seem likely to be severely impaired given that, untreated, his schizophrenia is subject to rapid decline.
As for general forms of support, it seems unlikely that he would get any from within Somalia (other than, perhaps, from NGOs). The Applicant is said to have no family in Somalia and no clan connections (noting that the clan system is said to be a key element of the Somali social system[219]). As such he would not have access to the main avenues through which support from within Somalia is provided. In this regard, in a report prepared in 2020 covering the period from February 1, 2017 to January 31, 2019 it is said (with my emphasis) that:
No public welfare system exists in Somalia. Welfare is either provided by Islamic charities, through clan membership or through the work of NGOs. With the collapse of state-run social services, services including health care, housing, employment or poverty alleviation became “privatized.” The main social safety nets that exist are offered by extended families and clans.[220].
[219] Exhibit A13, p15
[220] Exhibit A20, p29
The Applicant also may face a range of impediments because of his intellectual disability. In a 2019 report of the US Department of State it is stated that:
The needs of most persons with disabilities were not addressed. According to Amnesty International, persons with disabilities faced daily human rights abuses, such as unlawful killings, violence including rape and other forms of sexual violence, forced evictions, and lack of access to health care, education, or an adequate standard of living. Children and adults with all types of disabilities were often not included in programs aimed at supporting persons in the country, including humanitarian assistance.[221]
[221] Exhibit A14, p35
Any capacity that the Applicant might otherwise have had to establish himself, maintain basic living standards and access support from within Somalia might well be affected adversely by the social stigma attached to those suffering a mental health condition. According to the UNHCR:
Among Somalis, mental illness is often considered a shame and disgrace, and carries high social stigma. People with severe mental health conditions are often discriminated against and socially isolated. People with severe mental impairment are considered less worthy and command limited respect… Apart from chaining and violence, additional human rights violations against mentally ill people include the prevention of access to their funds, properties, and inheritances.[222]
[222] Exhibit A13-2016 publication
The effect of the impediments that the Applicant would likely confront on his return to Somalia on his capacity to establish himself there and maintain basic living standards all need to be considered in an overall context that is anything but facilitative. On return to Somalia the Applicant would face the real risk of, amongst other things, physical harm.
In a report of the Secretary-General to UN Security Council in August 2020 it is stated that:
The security situation remained volatile, with 288 incidents in May, 269 in June and 218 in July. Most of those incidents were crime-related killings and shootings and Al-Shabaab attacks, including those using improvised explosive devices. Levels of crime and armed conflict-related incidents have remained steady since January, with a slight decline in June and July. The number of terrorism-related incidents remained at an average of around 75 per month in May and June, with 53 incidents in July.[223]
…
Multiple shocks, including COVID-19, desert locusts and floods, have deepened the humanitarian crisis in Somalia. Since 16 March, COVID-19 has affected 3,212 people, including 133 health workers, with 93 associated deaths and 1,598 recoveries. COVID-19 has exacerbated pre-existing vulnerabilities, disrupted socioeconomic gains and affected livelihoods. It has also reduced the humanitarian footprint in Somalia, with most staff working in restricted environments, including from home or remotely.[224]
[223] Exhibit A21, p35
[224] Ibid,p62
The US Department of State in a 2019 report stated that human rights abuses in Somalia include:
“…unlawful or arbitrary killing, including extrajudicial killings, of civilians by federal government forces, clan militias, al-Shabaab, and unknown assailants; forced disappearances by al-Shabaab; torture and other cruel, inhuman, or degrading treatment or punishment by federal government forces, clan militias, al-Shabaab, and unknown assailants; arbitrary and politically motivated arrest and detentions, including of journalists by federal government forces and regional government forces; harsh and life-threatening prison conditions; political prisoners; arbitrary or unlawful interference with privacy; serious problems with the independence of the judiciary; the worst forms of restrictions on free expression, the press, and internet, including violence, threats of violence, and unjustified arrests and prosecutions of journalists, censorship, site blocking, and the existence of criminal libel laws; numerous acts of corruption; restrictions on political participation; unlawful recruitment or use of child soldiers by federal government forces, clan militias, Ahlu Sunna Wal Jama (ASWJ), and al-Shabaab.”[225]
[225] A14, p2
Conclusion
I find that this consideration as to impediments to be faced by the Applicant in establishing himself and maintaining basic living standards on removal to Somalia weighs heavily in favour of a conclusion that there is another reason to revoke the decision to cancel his visa.
He will have little support available to him in Somalia (of whatever type), poor prospects of employment, face significant health risks and real risks of harm.
CONCLUSION AS TO OTHER REASON FOR REVOCATION
In considering whether there is another reason for revocation of the decision to cancel the Applicant’s visa, my conclusions in relation to the various considerations to which Direction 79 requires that I have regard, do not point in a uniform direction.
In particular, in the circumstances of this matter:
·The primary consideration as to protection of the Australian community from criminal or other serious conduct weighs heavily in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision.
·The primary consideration as to expectations of the Australian community offers moderate support for such a conclusion.
·Two of the “other considerations” weigh in favour of a conclusion that there is another reason to revoke the visa cancellation decision, to a significant extent (being the considerations concerning international non-refoulement obligations and extent of impediments if removed to Somalia).
·The “other consideration” concerning the strength, nature and duration of the Applicant’s ties to Australia also weighs in favour of a conclusion that there is another reason to revoke the visa cancellation decision, but only slightly.
I have concluded that non-refoulement obligations are owed in respect of the Applicant. As I stated earlier, Direction 79 requires that I weigh these obligations (and, implicitly, the consequences of them) against the seriousness of the Applicant’s offending.
That offending has, as I have said, been very serious. Given the nature of that offending, there is a real risk of harm to members of the Australian community were the Applicant released into the community and re-offend, harm which may well include psychological and physical harm given the Applicant’s propensity (apparent from his criminal history) for violence and preparedness to carry (and on occasion use) weapons.
This represents a difficulty in concluding that the Applicant’s visa cancellation decision ought be revoked, a difficulty compounded by the fact that, in my view, the risk of the Applicant re-offending is significant.
Balanced against this risk is what is starkly put on behalf of the Applicant as the consequence of non-revocation of the visa cancellation decision: “…the refoulement of a man with an intellectual disability and schizophrenia to the most severe forms of harm … or the protracted (and potentially indefinite) immigration detention of a man with an intellectual disability and schizophrenia, where his health will worsen and where he is deprived of adequate treatment and supports.”[226]
[226] A SFIC [45]
As to this consequence I have concluded that refoulement is unlikely, at present. As for the Applicant remaining in detention, that will likely be deleterious to his health. It is not clear to me, however, that the Applicant’s health in detention at any particular time (where he is subject to ongoing pharmacotherapy) will be worse than it would then have been had he been free in the community given, amongst other things, the Applicant’s history of failing to adhere to his prescribed treatment regime.
It is clear that the matter is finely balanced. In the result, however, I am satisfied that there is not another reason for revocation of the visa cancellation decision.
DECISION
As I stated at the beginning of these reasons, in this proceeding the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.
I am not satisfied that the Applicant passes the character test.
I am also not satisfied that that there is another reason why the decision to cancel his visa should be revoked.
For these reasons, the Tribunal affirms the decision under review.
I certify that the preceding two hundred and twenty-six paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
227.
………………[sgd]………………….
Dated: 16 November 2020
Date of hearing:
5 and 6 November 2020
Counsel for Applicant:
Mr Nicholas Wood
Solicitors for Applicant:
Victoria Legal Aid
Counsel for the Respondent:
Mr Mark Cleary
Solicitors for the Respondent:
Sparke Helmore Lawyers
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