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

SQNX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2649 (18 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4732
Re:SQNX
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J Redfern
Deputy President Justin Owen

Date:18 August 2022
Place:Sydney

The decision of a delegate of the Minister on 25 May 2022 to not revoke the mandatory cancellation of the applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa is affirmed.
...............................[SGD]..................................
Deputy President J Redfern
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of a subclass 444 visa – where applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – mental health – guardianship – protection of and risk to the Australian community – extent of impediments – deportation notification arrangements between Australia and New Zealand – decision under review affirmed
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Mental Health Act 2007 (NSW) s 32
Migration Act 1958 (Cth) s 32, 499(2A), 500, 501, 501CA, 501G

CASES
Afu v Minister for Home Affairs [2018] FCA 1311
EAK [2013] NSWGT 18
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500.
Pavey and Minister for Home Affairs [2019] AATA 4198
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President J Redfern

Deputy President Justin Owen
18 August 2022
INTRODUCTION AND BACKGROUND

The applicant is a 45-year-old citizen of New Zealand. He arrived in Australia in 1992 with members of his family on a Special Category (subclass 444) visa when he was 15 years old. A Special Category visa is a temporary visa under s 32 of the Migration Act 1958 (Cth) (the Act) available to New Zealand citizens permitting them to remain in Australia. It is granted upon entry to Australia. The visa is for an indefinite period and expires when the visa holder leaves Australia.
The applicant has lived in Australia for nearly 30 years, having left on only one occasion to return to New Zealand for a period of two weeks when he was 19 years old. He has an extensive criminal record commencing in 1998 and has been sentenced to terms of imprisonment totalling 42 months. He has otherwise received fines, bonds, community corrections orders or convictions without further penalty in recognition of his mental health issues.[1]
[1] Section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a New South Wales court to record a conviction without imposing any further penalty in circumstances where the court considers a non-conviction conditional release order or dismissal is appropriate considering the circumstances the offence.
The applicant was released from prison in March 2021 and has been in immigration detention since then. He has a diagnosis of schizophrenia and has been the subject of financial management orders since 2011. On 23 December 2021 the New South Wales Civil and Administrative Tribunal (NCAT) made a guardianship order, appointing the Public Guardian for a period of 12 months. The Public Guardian was given decision-making authority and functions of advocacy, to advocate generally for the applicant, and legal services, to make decisions for the applicant in relation to access to legal services.
The application for review
On 5 March 2021, a delegate of the Minister mandatorily cancelled the applicant’s visa under s 501(3A) of the Act on the basis that the applicant did not pass the character test and was serving a full-time custodial sentence.[2] On 8 April 2021, the applicant made written representations to the respondent requesting revocation of the cancellation of the visa (revocation request).[3] Following the consideration of certain material, including representations made on the applicant’s behalf by the Public Guardian by letter dated 12 May 2022, the respondent decided not to revoke the cancellation, as recorded in the written decision dated 25 May 2022.[4]
[2] Exhibit R1, G14.
[3] Ibid, G16.
[4] Ibid, G4 - G5.
On 3 June 2022, the Public Guardian lodged an application for review of the decision dated 25 May 2022 in this Tribunal on behalf of the applicant.[5] We are satisfied that the Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Ibid, G2.
On 24 June 2022 the Tribunal made directions about the filing of evidence and submissions. These directions were varied on 8 and 22 July 2022 to provide the applicant with a further opportunity to file and serve evidence. The applicant, through his representatives, filed and served evidence comprising the guardianship order, a letter from the New South Wales Trustee and Guardian, the NCAT written reasons for decision, medical records from International Health and Medical Services (IHMS), being the medical service providers in immigration detention, and a report from Dr Emily Kwok dated 8 August 2022. The respondent filed evidence on 21 June 2022 and 2 August 2022, which included, respectively, the documents provided under s 501G of the Act and later two bundles of supplementary documents comprising documents produced under summons relating to the applicant’s criminal offending and publicly available documents relating to the comparative health care systems between Australia and New Zealand and arrangements between Australia and New Zealand in relation to returning New Zealand citizens.
The hearing
The matter was originally listed for hearing on 8 August 2022. The Tribunal re-listed the hearing on 11 August 2022 to give the applicant the opportunity to file and serve evidence. The applicant declined to attend. Ms Elaine Collins, regional manager, Office of the Public Guardian, and Dr Emily Kwok, clinical and forensic psychologist, gave evidence.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
We are satisfied that the applicant made the representations required by s 501CA(4)(a).
Accordingly, there are two issues before the Tribunal:
·whether the applicant passes the character test; and if not
·whether there is another reason why the decision to cancel the applicant’s visa should be revoked.
Does the applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 2 December 2020 the applicant was sentenced to a term of imprisonment of 12 months which was to commence on 28 March 2020, expiring 27 March 2021 with a non-parole period of six months. The applicant was released on parole but reoffended on 11 December 2020, breaching his parole. He was again incarcerated to serve the balance of the term and at the time his visa was cancelled, the applicant was in custody. At the end of his sentence, the applicant was transferred into immigration detention.
We therefore find that the applicant has a “substantial criminal record” and does not pass the character test. As such, the mandatory cancellation of the applicant’s visa cannot be revoked on the basis of s 501CA(4)(b)(i) of the Act.
Is there another reason why the cancellation of the applicant’s visa should be revoked?
In considering s 501CA(4)(b)(ii) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies.[6]
[6] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles in paragraph 5.2 of the Direction are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction provides that the following ‘primary considerations’ must be taken into account:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
The Direction provides further guidance as to how each of these primary considerations are to be assessed at paragraphs 8.1 to 8.4.
Paragraph 9 of the Direction also provides that, where relevant, the following (non-exhaustive) ‘other considerations’ must be taken into account:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
Paragraph 7 of the Direction provides that in applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight, that primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. However, as observed by Colvin J in Suleiman v Minister for Immigration and Border Protection in relation to Direction 65, which is now Direction 90:
“…Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[7]
[7] [2018] FCA 594 at [23].
Having regard to Suleiman it is clear that the other considerations referred to in Direction 90 ‘may be afforded equal or greater weight than primary considerations in an appropriate case’ (Colvin J at [26]).
OUTLINE OF THE EVIDENCE
The applicant’s early life
The applicant has lived in Australia since 1992. He arrived in Australia with his sisters when he was 15 years old. Little is known about his history and connections with New Zealand prior to coming to Australia. His mother passed away in 2007. His father has also passed away and, while there is evidence that the applicant lived with his father for a period of time, there is little evidence about his early life in Australia. No evidence was provided by the applicant’s siblings about their relationship with the applicant. The only information before the Tribunal about these matters was provided by the applicant in his handwritten forms completed for the Department and provided by others, based on information said to have been provided to them by the applicant.
There is no dispute that the applicant has a diagnosis of schizophrenia, a lengthy criminal record and has had periods of homelessness over the 30 years he has lived in Australia. The applicant’s history and background has been characterised by multiple challenges. It is unclear what guidance and support the applicant had when he first arrived in Australia but what is clear is that he has struggled for many years with mental health issues which, according to the experts, have contributed to his criminal offending.
The applicant’s criminal history
The applicant has been convicted of over 20 offences since 1998. Many of the convictions relate to theft or property offences at the lower end of the scale of seriousness. There were two early common assault charges in 2003 and 2010 for one of which the applicant was sentenced to a bond of 12 months and the other a fine but otherwise most of the applicant’s early offences are at the lower end of the scale and might be considered less serious.
The applicant’s criminal history suggests that there are periods of stability, with intermittent criminal offending clustered around multiple offences. For instance, the applicant was convicted of three offences in early 1998 for property and drug possession offences and a contravene apprehended domestic violence order offence, for which there is little detail. He was fined for these offences and placed on recognisance of two years for contravention of that order. Thereafter, there is no record of criminal offending until 2003, when the applicant was convicted of common assault following an altercation in the units where he lived at the time. There was a period of about seven years after this offence where there is no record of criminal offending by the applicant, although there was an incident in 2006 which was dismissed under s 32 of the Mental Health Act 2007 (NSW).[8]
[8] This section allows a person to be detained in a mental health facility on certain conditions.
In May 2010, the applicant was charged with and subsequently convicted of three offences, two of which were related. He was fined for each offence. There were further charges in 2011, the most serious in September 2011 resulting in his conviction and sentencing on 14 February 2013 for recklessly causing grievous bodily harm. The applicant was sentenced to 30 months imprisonment with a non-parole period of 15 months. According to the agreed facts, the applicant attacked the victim on a train. The attack was violent, and the victim suffered swelling to his right eye, three broken ribs, a collapsed lung and was hospitalised for three days. The victim stated that the applicant punched him and, when he tried to escape, the applicant pursued him and continued to attack him, charging at him on a number of occasions. The attack lasted for about five minutes and the victim was eventually assisted by fellow passengers and a transit officer. The victim stated that he was “very scared”.
Dr Adrian Keller, forensic psychiatrist, prepared a report for the court dated 6 February 2013. He opined as follows:
In my opinion, [the applicant] is a mentally ill person with a chronic psychotic illness which is best conceptualised as either a chronic disorganised schizophrenia or a schizoaffective disorder. He exhibits persistent psychotic symptoms, even when he has been consistently medicated for an extended period, such as the current period in custody. He could thus be considered to have a partially treatment resistant illness.
[The applicant] also has a diagnosis of polysubstance abuse and possible, dependence, which is in remission in the controlled environment of custody. His most recent problematic substance has been alcohol, and in the past both cannabis and stimulants have been a problem for him.
In relation to his specific index offence, [the applicant] appears to have been experiencing significant psychotic symptoms, particularly auditory, hallucinations, including command auditory hallucinations, at the time of the index offence. He also appears to have been heavily intoxicated with alcohol which is likely to have been a significant disinhibiting factor. I note that he displays little remorse for his actions, or the effect of his actions on the victim. Although [the applicant] is likely to have the defence of mental illness open to him in relation to this charge, he has made the decision to enter a guilty plea.
[The applicant] exhibits a range of significant risks associated with his mental illness. The first of these is his history of serious deliberate self harm which has been linked to his command auditory hallucinations and religiose delusions. Although he is not currently expressing thoughts of deliberate self harm, these are likely to be related to periods of more florid psychosis, so that when his illness is poorly controlled this risk is likely to be significantly increased. Further risks include the risk of ongoing homelessness and misadventure related to unstable accommodation. I note that [the applicant] does not have a long history of instrumental violence through assault. However, this index offence suggests that there is a significant risk of opportunistic assault which is impulsive and unpredictable, likely to be on the basis of psychotic phenomena, possibly with the additional disinhibiting effect of alcohol, and complicated by his precarious lifestyle choices.
In relation to treatment recommendations, if [the applicant] is to be considered for release from custody, he will require very assertive mental health follow up in the community….
In addition to assertive mental health follow up, [the applicant] will need assistance with abstinence from substances, and in particular alcohol. The disinhibiting effects of alcohol are clear, and are likely to exacerbate any underlying mental illness. He appears to acknowledge this as being a significant problem but will require support through specific counselling and possibly additional services such as Alcoholics Anonymous.

In his sentencing remarks, Judge North noted as follows:
Given the mode of attack which involved a punch, shouldering, grabbing and pushing, it is not the most serious example of an offence under this section, however, due to the injuries and the fact the attack was not short in time it remains objectively serious.
……………………………….
Reading between the lines he is clearly a person who would pose significant risk both to himself and other members of the community if his treatment and medication plan is not followed. However, he gave evidence that he intended to do this and it is true that his record is not one full of gratuitous violence and this is clearly the most serious offence that he has committed.
In that regard given the seven year period where he did not present any danger to the community I have formed the opinion that as long as he does continue with his medication then he has a reasonable chance of not reoffending and of continuing with the rehabilitation that has commenced whilst in custody.[9]
[9] Exhibit R1 (G-Documents), 57.
Following this incident, the applicant was brought before the Mental Health Review Tribunal on 30 November 2011 and a financial management order was made, committing the applicant’s estate to management by the New South Wales Trustee and Guardian. The applicant has been subject to financial management since this date.
After the sentencing for the September 2011 attack, a delegate of the Minister considered whether the applicant’s visa should be cancelled on character grounds. The applicant was notified of this by letter dated 30 April 2013. The delegate decided not to cancel the applicant’s visa and the applicant was notified of this on 4 June 2013. The applicant was also warned that his visa may be cancelled if further information came to the attention of the Department and if this happened, his past conduct would be considered.
The applicant was released in March 2013, having served his non-parole period of imprisonment from 6 April 2012. Thereafter there was a period of apparent stability for approximately five years with no offences or convictions recorded. This came to an end in August 2017 when the applicant was charged with a number of property related offences and failing to appear, resulting in a bond and a conviction with no other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Of significance is an incident on 15 August 2017 where the applicant threw a brick through the window of his father and sister’s house. The applicant had been living at his father’s house but left the house after his sister came to live there with her husband and five children. He returned to the house and demanded access. His sister refused entry to house and, according to the prosecution fact sheet, the applicant picked up a brick from the front yard and threw it through the front bedroom window causing the window to smash. The applicant was convicted on 4 May 2018 for destroy or damage property (DV) and was sentenced to an eight-month bond.
In 2019, the applicant was charged with and convicted of several theft and property offences for which he was fined. From 2020, his offending escalated into a series of offences, being property offences, stealing, wielding a knife in a public place and, nine days after his release from prison, the offence of attempt stalk/intimidation intending fear of harm and behaving in an offensive manner in or near a public place.
According to the agreed statement of facts, the applicant was walking near Town Hall in March 2020 when he approached a person carrying a suitcase. The applicant was wielding a knife. The victim dropped his suitcase, which the applicant then stole. The applicant was later apprehended by police. In sentencing on 2 December 2020, Magistrate Quinn observed as follows:
I do take into account what you have said on his behalf. I do take into account the fact that he has schizophrenia. I do take into account his alcoholism. He is a nuisance to the community, there is no doubt about that. More than a nuisance because he is terrorising them with box cutters and knives because he wants to do what he wants to do.
The objective seriousness is not as high as steal from the person, although nobody would want that to happen to them, to be approached with a person with a box cutter and then wield knife. The wield knife is the more objectively serious in this matter.
The applicant was sentenced to a term of 12 months imprisonment to commence on 28 March 2020, expiring on 27 March 2021, with a non-parole period of six months. The Magistrate made a finding of special circumstances in relation to alcohol rehabilitation and found that the applicant had “served his sentence” and was therefore released to Community Corrections. Unfortunately, the applicant reoffended on 11 December 2020 when he walked into a Hungry Jacks venue in Darlinghurst. He ordered food but became aggressive when he was unhappy with his order. He threatened the staff behind the counter and made offensive comments to another customer with their two small children. The applicant was intoxicated.
The applicant was sentenced on 29 January 2021 and in her sentencing remarks, Magistrate Kennedy noted that the applicant had a mental health condition and had not been receiving medication. She observed, directing her comments to the applicant, as follows:
You really would have frightened these people who are just a bit vulnerable working at Hungry Jack’s just trying to go about things and you just make serious threats to them.
The applicant was sentenced to a Community Corrections Order for 12 months and an order under s 10A but because he had breached parole for the previous sentence, the applicant was required to serve the balance of his parole period from 22 January 2021 to 29 March 2021 in prison.
The applicant’s direct evidence
On 5 March 2021 the applicant’s Special Category visa was cancelled. The applicant requested that the cancellation be revoked. As the applicant did not file a statement in these proceedings or give evidence, the only information the Tribunal has before it in the applicant’s own words are those set out in the application and in his Personal Circumstances form dated April 2021.
In support of the revocation request in April 2021, the applicant completed a Personal Circumstances form setting out the following reasons for his request:
The reason for pleading against my deportation. My nephews and nieces I’ve been there when they came into the world, every single one of them, my love (sic) ones and opportunity in Australia for work having a creative mind vision and my thoughts that try to keep pure indeed that who I am. And a job I’ll love to have is being a Musician. Music and the knowledge in Australia is powerful and I wouldn’t mind being in the picture.
According to the information provided by the applicant in the Personal Circumstances form, he is a New Zealand citizen and his mother’s citizenship at birth was Western Samoa. According to the applicant, his mother’s citizenship was New Zealand and Australian. He did not complete any details for his father. The applicant noted that he travelled to Australia with his sisters in September 1992. He also noted that he had a girlfriend who lived in Woolooware. He did not complete that part of the form relating to his marital status and he ruled through the section dealing with minor children. He listed ‘other minor children in his life’ as including six nephews and one niece. Four of the children mentioned were the children of the sister who was the subject of the domestic violence orders in 2018. The other three nephews were listed as his other sister’s children. There is no further information in the form or otherwise available to the Tribunal about the applicant’s relationship with these nephews and his niece.
In response to the question about how many other relatives he had in Australia and overseas, the applicant noted that he had four aunts or uncles in Australia, seven nieces and nephews and four cousins. He noted that he had two aunts or uncles in another country but did not specify the country. He also noted that he had one niece or nephew and five cousins in another country. The applicant indicated that he had studied in Australia in Year 10 and part of Year 11 and that he had worked intermittently between 1994 and 1996, during 1997 and 2003, between 2000 and 2001, between 2005 and 2008 and between 2009 and 2011. The applicant answered “no” to the question about whether he had any fears or concerns about what would happen to him if he returned to New Zealand. He also answered “no” to the question about whether there were any other problems he would face if he returned to New Zealand. In answer to the question about other information, he responded to the following effect:
My love (sic) ones live here in Australia and also support is here for me in mental health with medication and there is more work here in Australia and opportunity for been (sic) a musician.
Guardianship of the applicant
On 23 December 2021, the Guardianship Division of NCAT considered an application for guardianship made by Dr Julian Spencer, Mental Health Medical Director at IHMS. According to a report lodged by Dr Spencer with the Guardianship Division dated 10 November 2021, she was concerned that the applicant had psychosis and was “languishing in detention”. She was concerned that he did not have the capacity to follow through with the necessary legal paperwork and requested that a guardianship order be made with decision-making functions of advocacy and legal services. NCAT accepted that there was a need for a guardian with the decision-making functions proposed by Dr Spencer and the orders were made accordingly.
By letter dated 12 May 2022, Principal Guardian, Michelle Binney, made representations on behalf of the applicant in relation to the request to revoke the cancellation. She noted that that the applicant had a diagnosis of schizophrenia and had been prescribed risperidone for his mental illness. She also noted that he had previous suicidal ideation when using illicit drugs. According to Ms Binney, she conducted a telephone interview with the applicant on 21 April 2022. She noted that the applicant said he would like assistance to find appropriate accommodation and support services. While the Public Guardian did not have authority to make such decisions on the applicant’s behalf, Ms Binney stated that if the applicant’s visa was granted (which we take to mean if the cancellation of the applicant’s visa was revoked), the Public Guardian would seek a review of the guardianship order and would advocate to the Guardianship Division for the order to be varied to include the accommodation and services functions. It was also stated that the applicant would be eligible for National Disability Insurance Scheme supports. According to the report, the applicant told the Principal Guardian that he did not have any connections to anyone in New Zealand and that his mental illness would cause challenges to him readjusting to a place where he lacks support. The applicant reportedly told Ms Binney that he wanted to remain living in Australia. He stated that his parents had both passed away and he had sisters living in Sydney.
Relevantly, the Principal Guardian stated as follows:
[The applicant’s] health and social history highlights his extreme vulnerability and identifies extenuating circumstances that have contributed to his current situation. His disability requires ongoing treatment from specialist supports. During his time in detention, International Health and Medical Services have noted improvements regarding his mental health and risk to others. The Public Guardian is of the view that with appropriate support, [the applicant] has good prospects of being socially habilitated. As such, the Public Guardian will continually advocate for [the applicant] to access community support services available to him, which may include community mental health, as well as NDIS funded supports. Such assistance will promote [the applicant’s] wellbeing, encourage prosocial behaviour and help with community reintegration.
By written decision dated 25 May 2022, a delegate of the respondent refused to revoke the cancellation of the applicant’s visa. In brief, the delegate was not satisfied that the applicant passed the character test or that there was another reason why the cancellation decision should be revoked.
The delegate found that the applicant’s criminal conduct must be considered to be very serious and that, given the potential risk of harm to the Australian community, the need to protect the Australian community from criminal or other serious conduct weighed significantly against revocation. The delegate noted that the applicant had been charged with breaching an apprehended violence order in 1998 and had been convicted of common assault in 2003 and 2010, but it was concluded that there was insufficient evidence that the applicant had engaged in conduct that constitutes family violence as defined in the Direction. It was noted that the applicant did not have any children and even though he had listed several nieces and nephews as minor children, the delegate was not satisfied there was sufficient information to find that any child in Australia would be significantly affected by a non-revocation decision. The delegate found that the Australian community would expect non-citizens to obey the law and that where a non-citizen has engaged in serious conduct in breach of this expectation, it would be expected, as a norm, that the non-citizen would not be allowed to enter or remain in Australia. The delegate attributed significant weight to this consideration against revocation of the cancellation of the visa.
The delegate noted that there would be impediments if the applicant was removed to New Zealand but stated the applicant would have access to health services, treatment and welfare services that were of a “comparable standard and availability to those services available to him in Australia”. The delegate further noted the applicant’s employment history in Australia and noted the language and culture of New Zealand was similar to that of Australia. It was acknowledged that the applicant had no or few familial connections in New Zealand. In assessing these matters, the delegate found that the applicant would face serious difficulties in establishing himself and maintaining basic living standards, particularly initially, but that in time the applicant would have access to comparable facilities for his care and support in New Zealand. Despite the dearth of information about supports of his immediate family members in Australia, the delegate found that the applicant’s family would experience emotional hardship if the applicant was removed but they would be able to maintain telephone and social media contact and could travel to New Zealand to visit him.
The delegate noted that the applicant had ties to Australia, having lived here for 30 years, and that the Australian community may afford a higher level of tolerance of his criminal or other serious conduct because of these ties.
In weighing these matters, the delegate found that a number of factors weighed in favour of a decision to revoke but the delegate gave significant weight to the serious nature of the criminal conduct of the applicant and was concerned about any risk of reoffending which may be considered unacceptable. On balance, the delegate found the factors that weighed against revocation of the cancellation outweighed the factors in favour of revocation.
The Public Guardian sought review of this decision on the applicant’s behalf.
As already noted, the applicant did not provide a statement or attend the hearing to give evidence. The New South Wales Trustee and Guardian provided a short report dated 29 July 2022 to the effect that the applicant had resided in subsidised government rental accommodation at Surry Hills prior to his incarceration and transfer to immigration detention. The applicant’s financial affairs had been managed by the Client Specialist Centre since 2012 and they had assisted him in securing housing over the years. Unfortunately, a decision was made to relinquish the applicant’s tenancy given he was in immigration detention and his period of detention exceeded the usual six-month grace period. The New South Wales Trustee and Guardian also stated as follows:
Should [the applicant’s] visa application be reinstated, and he remains in New South Wales, New South Wales trustee and Guardian could assist [the applicant] by linking him to mental health and support services, such as National Disability Insurance Scheme (NDIS) who could in turn assist with housing, mental health and community access.
It is unlikely that in NSWTAG would be able to provide a financial management service to [the applicant] if he was deported back to new NZ, given jurisdictional requirements.
The applicant’s lawyers filed and served medical health records from IHMS which confirmed that the applicant has a diagnosis of schizophrenia. These records indicated that the applicant had consented to the self-administration of his medications while in immigration detention but had missed a number of appointments during 2021 and had missed taking his medications on several occasions, as recorded in notifications dated 22 June 2021, 4 March 2022, 11 July 2022 and 26 July 2022. The IHMS documents provided by the applicant included a mental health discharge summary report dated 23 March 2021. This was the summary report prepared on the discharge and, in this case, transfer of the applicant from the prison mental health facility to immigration detention. In a form apparently completed by the applicant it is noted that the applicant ticked the box “yes” in relation to the question of whether he identified as an Aboriginal or Torres Strait Islander. The reference to Torres Strait Islander is underlined with the words handwritten next to the question. While the applicant was not available to explain why he had ticked this box, it seems that he does not identify as an Aboriginal but rather as a Torres Strait Islander, perhaps misunderstanding his mother’s heritage in Western Samoa.
A mental health transfer and discharge summary completed by NSW Health on 24 March 2021, in relation to his transfer to Villawood Immigration Detention Centre, also notes that the applicant has a history of self-harm and suicide by stabbing his neck and stomach, he had been on risperidone depot injections for two years[10], he did not have depot injections while in the community, he drank a four-litre cask of wine a day and had not spoken to his sisters at the time of the interview.
[10] A depot injection is a slow-release form of medication, often used for antipsychotics.
On 8 August 2022, the applicant’s lawyers provided a report from Dr Emily Kwok, clinical and forensic psychologist. Dr Kwok stated that she was unable to interview the applicant because he would not participate in the interview, but she undertook a detailed analysis of documents provided to her, including the applicant’s medical and criminal records. Dr Kwok also gave evidence at the hearing.
Dr Kwok was asked to report “In your professional opinion, what is the likelihood of [the applicant] offending and the risk to the Australian community?”
Dr Kwok reported that there were a range of areas in which the applicant would benefit from intervention and support in order to address his criminogenic needs and reduce his risk of reoffending. She reported that the applicant’s psychosocial challenges and mental illness appeared to be the chief of these criminogenic needs. She further noted that to reduce the applicant’s risk of reoffending:
…he would require intensive intervention that addresses his chronic mental illness, substance abuse, and psychosocial challenges including homelessness. I would recommend that the treatment of [the applicant’s] condition needs to involve both pharmacologic and evidence-based psychosocial treatments. Given his history of psychosis in the community and current psychosocial challenges, he likely needs to be closely supervised if he is permitted to return to the community. I am unclear on whether his extensive criminal history is a result of his lack of insight due to mental illness and/or other cognitive impairment, or whether he genuinely has a pattern of antisocial attitudes. I would, therefore, suggest that [the applicant] be properly assessed for a more detailed treatment plan to be formulated. Without intensive intervention, there is a high-moderate risk that [the applicant] would re-offend.

Notably, Dr Kwok referred to some protective factors against the applicant’s risk of further reoffending. She referred to the support of his sisters, the fact that he may have a girlfriend and the applicant’s willingness to engage in treatment in the community. She noted he had been taking his medication while in detention.
In answer to the question about whether the applicant posed a risk/threat/danger to the Australian community, Dr Kwok reported that this risk was in large part dependent on him being able to have a stable living condition and access to necessary support and intervention. This was contingent on the Public Guardian having further decision-making functions of accommodation and services, as well as approval of NDIS funding. Dr Kwok noted that the applicant needed close supervision in the community and without these supports he would be a high – moderate risk of reoffending.
In summary, Dr Kwok concluded that there was a high – moderate risk the applicant would engage in further criminal conduct and be a risk to the Australian community if he was not provided with appropriate intensive and structured intervention that involved both pharmacological and evidence-based psychosocial treatments.
In cross-examination, Dr Kwok said she had tried to interview the applicant, but he had left after five minutes. He may have been agitated and looked distressed and said he did not want to tell his story again.
Dr Kwok agreed that the applicant’s past behaviour could be an indication of his future conduct. She noted he had a problem with alcohol. Dr Kwok emphasised the importance of the applicant taking his antipsychotic medication and being supported in the community. She said that if the applicant was not being closely monitored if he was deported to New Zealand, there would be problems.
Ms Elaine Collins gave evidence on behalf of the Public Guardian because Ms Binney was not available to give evidence. Ms Collins was not aware of whether previous guardianship orders had been made for the applicant but said that if the cancellation was revoked, the Public Guardian would seek a review of the guardianship order and would seek additional functions such as accommodation, services and healthcare. Ms Collins said the guardianship order did not have extraterritorial application and so could not extend beyond New South Wales to have effect in New Zealand.
CONTENTIONS OF THE PARTIES
Applicant’s contentions
The applicant accepts, through submissions made by his representatives, that he does not pass the character test because he has a substantial criminal record but contends there are other reasons why the mandatory cancellation should be revoked. It is conceded that the applicant entered the criminal justice system in 1998 when he was 22 years old, that his criminal history spans over 24 years and that his offending behaviour has increased in seriousness over time. However, it is submitted that there were significant periods when the applicant did not offend and all offences committed between 1998 and 2012 were dealt with by way of fines, bonds or under s 10A. It is also submitted that the applicant has substantial mental health issues, and this is a relevant consideration, reducing his moral culpability for his criminal offending.
It is submitted that even though it can be accepted there is a moderate to high risk the applicant will reoffend, the risk can be mitigated by the applicant having appropriate mental health supports and services. It was put that if the applicant is removed from Australia, there is no evidence he will have any support structures in New Zealand. The support provided by the New South Wales Trustee and Guardian and the Public Guardian and the continuity of this support is critical to the applicant’s needs. There is no evidence this support can be provided in New Zealand. The applicant has significant links to Australia, having resided here for 30 years. It is contended that all these matters weigh in favour of revocation of the cancellation.
Respondent’s contentions
The respondent contends that the nature and seriousness of the applicant’s offending weigh very heavily against revocation. The applicant has committed a number of offences over a very lengthy period of time and the pattern of his offending indicates an escalation in the frequency and seriousness of his offending, including an increasing use or threat of use of violence. It is further contended that the seriousness of the applicant’s offending is reflected in the prison sentences imposed for the 2013 and 2020 convictions. In this regard, the respondent relies on the decision of Senior Member Tavoularis in Pavey and Minister for Home Affairs [2019] AATA 4198 at [44] that “custodial terms must necessarily be viewed as a reflection of the objectives seriousness of a given offence committed by an applicant”.
The respondent contends that the Tribunal should consider the likelihood and consequences of further offending and that in this case there is evidence the applicant’s risk of reoffending is high. It is submitted that the applicant is either unwilling or incapable of rehabilitation and his offending indicates he is a high risk of recidivism if released into the community. Although it is conceded the applicant’s offending may be contributed to by his psychiatric illness and polysubstance abuse, it is submitted he has failed to avail himself of available family, community, and public health supports. As such, the Tribunal should find that the applicant poses an unacceptable risk to the Australian community, including the likely physical and/or psychological harm that may be visited upon the Australian community should the applicant reoffend.
The respondent notes that the applicant has two convictions involving family violence, one relating to his sister, and that this offence should be viewed very seriously and should be given weight against revocation.
The applicant does not claim to have biological children and even though he has identified nephews and a niece in Australia, he has provided no evidence regarding his involvement in their lives. It is therefore contended that the Tribunal should place neutral weight on this consideration.
The expectations of the Australian community is submitted to weigh heavily against revocation. It is submitted that there is evidence the applicant has committed at least two offences involving family violence and offences against innocent bystanders in the community with an escalating degree of seriousness. He has put members of the Australian community at risk.
The respondent submits that the Tribunal has previously accepted that Australia and New Zealand have comparable systems in relation to medical care, social supports and housing. It is also submitted that the New Zealand Government Ministry of Health – Office of the Director of Mental Health Annual Report 2016 states that the Ministry of Health is an approved agency under an information sharing arrangement with Australia that may receive advance notice of New Zealand citizens being removed from Australia to identify health needs that will require a health response on return to New Zealand.[11] It is submitted that according to the International Profiles of Health Care Systems Report 2020,[12] New Zealand has universal health coverage and that all citizens have health insurance through a government funded, universally accessible health service. The report also records that mental health care is primarily available through community-based services coordinated by a patient’s general practitioner and that district health boards also deliver forensic, acute inpatient, and community-based services. It is submitted that the Tribunal should place little weight on the submission of the applicant’s representatives that the applicant would be eligible for the NDIS if his visa was restored because it is unlikely the applicant would meet the strict criteria to be funded by the NDIS.
[11] Exhibit R3 at FS1.
[12] Exhibit R3 at FS2.
In response to the applicant’s submission that he will be homeless and destitute if he returns to New Zealand and that he will be deprived of family, social and medical support, the respondent contends the applicant has been homeless and destitute for substantial periods of his residence in Australia. While the respondent accepts the applicant may suffer some difficulties in establishing himself in New Zealand on his return, it is contended that these difficulties are not insurmountable. The respondent accepts the applicant has some level of existing support in Australia, although limited, and contends the Tribunal should give this consideration some weight in favour of revocation.
The respondent contends the applicant’s family in Australia, including his two sisters, would doubtless be disappointed if the applicant were to be removed but the applicant’s lengthy criminal history, history of homelessness and periods of incarceration suggested he does not ordinarily reside with his family. There is no apparent reason why his family members could not travel to visit him in New Zealand. The applicant has demonstrated a limited employment history although the respondent accepts it would be reasonable to expect that the applicant has developed some links to the Australian community throughout his 30 years residing here. It is contended that while the applicant may have some links to the Australian community, this factor should be given limited weight in favour of revocation.
In summary, the respondent contends that the factors weighing against revocation of the cancellation of the applicant’s visa outweigh the factors in favour of revocation.
IS THERE ANOTHER REASON TO REVOKE – CONSIDERATION OF DIRECTION 90
Protection of the Australian community
Paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It is also noted that decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. Paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Not all of the factors specified are relevant to the facts of this case and we have focused on those matters that are most pertinent.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provide that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community. Sub-paragraph (b) identifies conduct that may be considered serious, much of which is not relevant to the conduct of the applicant, although there is a catch-all provision referring to any conduct that forms the basis for a finding that a noncitizen does not pass an aspect of the character test that is dependent on the decision-maker’s opinion. Sub-paragraph (c) directs a decision-maker to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant and sub-paragraph (d) points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. Sub-paragraph (e) is concerned with an examination of the cumulative effect of an applicant’s repeated offending. Sub-paragraph (h) is not relevant to the present case because there is no suggestion that the applicant provided false or misleading information to the Department or that he failed to disclose prior criminal offending. Sub-paragraph (g) focuses on whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
Both parties agree that the applicant has been convicted of serious and, on occasion, violent crimes and that he has a criminal history of offending over a lengthy period. Both accept that the applicant’s criminal offending has escalated, although it is submitted for the applicant that he has not been “morally culpable” for such offending.
The applicant’s criminal history is serious. There is no dispute his criminal history spans over many years, but we would not necessarily accept that the applicant’s criminal offending has escalated over time or that it has been sustained and continuous during this period. There have been extended periods where the applicant has not offended and, as Dr Kwok observes, the applicant’s criminal offending is influenced by his mental health issues and polysubstance abuse, possibly exacerbated by his mental health issues and failure to take his medication. The pattern of the applicant’s offending until 2011 was generally at the lower end of the scale, with a few instances of aggression but no custodial sentences.
This changed in 2011 when the applicant perpetrated an attack on an innocent passenger on a train. The attack was sustained and violent and the victim, in his own words, was “very scared”. The victim suffered significant physical injuries that included three broken ribs and a collapsed left lung that required the insertion of a catheter. It is possible if not likely, although there was no reference to this in the prosecution statements or the sentencing remarks, that the victim would have suffered psychological harm. The sentencing judge describe the offence as “objectively serious” and the applicant was sentenced to 30 months imprisonment with a non-parole period of 15 months. This is a significant custodial sentence.
What followed was a period of apparent stability, which was brought to an end by a family violence related incident that was potentially dangerous but ultimately not assessed by the court as very serious, as evidenced by the nature of the charges and the bond imposed by the court. We accept that the incidents in 2020 were not only serious but concerning because of the risk they posed to innocent bystanders, the workers in Hungry Jacks and two young children. The applicant was clearly unwell at the time of these offences and it is unclear whether he was taking his medication. However, this does not diminish the seriousness of the applicant’s offending, which was recognised in the 12-month custodial sentences imposed by Magistrate Quinn in December 2020.
We also note that the applicant continued to offend after 2013 when he was warned by the Department about the potential consequences. This is relevant to the nature and seriousness of the applicant’s criminal offending. However, we accept that the applicant’s schizophrenia and diminished capacity somewhat neutralises the effect of a warning when the non-citizen has underlying conditions outside his control that affect his conduct and behaviour.
Notwithstanding the applicant’s diminished responsibility in respect of a number of these offences, which has apparently been accepted by the courts over the years, we find that the applicant’s history of criminal offending is serious. It has been over a lengthy period and some of the applicant’s conduct has been violent, causing physical and possibly psychological harm. We accept that aspects of the applicant’s conduct could be described as conduct for which he is not “morally culpable” but this does not diminish the objective seriousness of his offending. We therefore accept the respondent’s submission that the nature and seriousness of the applicant’s offending weighs against revocation of the cancellation of his visa.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Evidence about the applicant’s offending, including his recidivism during periods of mental health instability and polysubstance abuse, is consistent with expert opinion about the nature and drivers behind the risk of the applicant reoffending. There is a moderate to high risk of the applicant reoffending. Expert opinion about the applicant’s risk factors are contained in the reports of Dr Kwok and Dr Keller. Notably, these opinions are consistent, even though there is nine years between them. The applicant’s mental health issues and the impact on his criminal offending are also referred to in the sentencing remarks of Judge North and Magistrates Quinn and Kennedy and are consistent with the uncontested facts relating to the following convictions:
(iii)2003 for common assault;[13]
(iv)2013 for grievous bodily harm;[14]
(v)2018 for related family violence offences of destroying or damage to property;[15]
(vi)2020 stealing from a person and wielding a knife in a public place,[16] and
(vii)2020 attempt/stalk – intimidating intend fear of harm and behave in offensive manner in public place.[17]
[13] Exhibit R2, S37 at pp 74 – 75.
[14] Ibid, S53 – 60 at pp 112 – 272.
[15] Ibid, S42 – 43 at pp 81 – 89.
[16] Ibid, S46 – 50 at pp 97 – 107.
[17] Ibid, S29 – 35 at pp 57 – 72.
The respondent submits that there is a high risk of the applicant reoffending and points to the fact that the applicant reoffended after only nine days of being sentenced on 2 December 2020. Notably, Magistrate Quinn warned the applicant about the importance of alcohol rehabilitation, to which he responded “yeah, yeah, yeah. I’ll give up alcohol; I’ll go back to church ma’am”. The respondent further submits that the applicant is either unwilling or incapable of rehabilitation.
In contrast, those representing the applicant submit he has good prospects of rehabilitation if there are sufficient mental health supports in place through supervision, supported accommodation and intervention by the Public Guardian, with expanded decision-making functions. This is also a view expressed by Michelle Binney, Principal Guardian, in her submission of May 2022.

This is not a case where the applicant has wilfully reoffended and, in this regard, we accept the submission made by the applicant’s lawyers that the applicant is not morally culpable. He has a diagnosis of schizophrenia and this has been long-standing. He has had periods of homelessness and polysubstance abuse and, as observed by Dr Kwok, there is a high to moderate risk the applicant will engage in further criminal conduct and be a risk to the Australian community if he is not provided with appropriate intensive and structured intervention. The difficulty is that there is evidence the applicant has been provided with intensive and structured intervention over the years. He has not been compliant in taking his medication (as evidenced by the recent records provided by IHMS), and on the face of it he appears to not have had any recent contact with his immediate family and there is little evidence that he has sufficient insight to support his needs or to seek assistance when necessary. This situation has persisted for many years and it appears that the applicant may not have had the benefit of early sustained intervention when he first showed signs of mental instability and criminal offending during his 20s. While Dr Kwok states that the applicant needs appropriate intensive and structured intervention to mitigate his criminal offending, she does not make an assessment or provide an opinion about whether such intervention could be successfully implemented given the applicant’s history. We accept that Dr Kwok’s assessments are necessarily limited by the fact she could not interview the applicant. We note she had a short period of time to make the assessment and prepare her report.
There is evidence in the information provided under summons by New South Wales Police, and various courts, that the applicant has been the subject of numerous mental health assessments and interventions over the years.
According to a letter from the Liverpool Health Service to the Magistrate Liverpool Court, sent by facsimile on 24 September 2003, the applicant was presented to Liverpool Hospital to be reviewed by the mental health team with a view to possible admission and stabilisation of his medication.[18] In his report dated 6 February 2013, Dr Keller noted that the applicant first experienced psychiatric symptoms in 1997 when he began to hear voices.[19] The applicant told Dr Keller that he was subsequently admitted to the psychiatric unit at Camperdown Hospital and was placed on a long-acting depot antipsychotic and a community treatment order. It is also recorded in Dr Keller’s report that the applicant said he continued to receive ongoing treatment in the community in the Campbelltown and Liverpool areas for much of the next decade and had multiple admissions to hospital. It is also recorded in the New South Wales Police Force Criminal History – Bail Report dated 1 July 2022 that various charges were dismissed in 2006 under s 32 of the Mental Health Act 2007 (NSW) and the applicant was referred for mental health assessments under s 33 of that Act in 2011, 2012 and 2020. [20] According to a letter from St Vincent’s Hospital to the Downing Centre Local Court dated 10 January 2019, the applicant was a voluntary patient with a case manager for about five months in 2018 but, as noted in a further letter from St Vincent’s Hospital to Corrective Services dated 12 November 2020, the applicant had “disengaged with voluntary treatment” in 2018.[21]
[18] Exhibit R2, S38 at p 77.
[19] Exhibit R2, S55 at pp 118 – 122.
[20] Exhibit R2, S1 at pp 1 – 15.
[21] Exhibit R2, S15 at p 35; S32 at p 65.
While we do not accept that there is clear evidence the applicant’s criminal offending is escalating, there is evidence he becomes aggressive during periods of instability. The most recent incidents of offending in March and December 2020 are particularly concerning because they were directed towards innocent bystanders and children. Dr Kwok opines that there is a moderate to high risk of the applicant reoffending unless there is structured intervention. There is evidence that there has been structured intervention from at least 2003 and possibly as early as 1997. This intervention has not successfully mitigated the risks of the applicant’s criminal conduct, some of which, including recently, is unpredictable and violent in its nature. The applicant seriously injured a victim in 2011 and has threatened to harm others as recently as March and December 2020. He has been in prison or immigration detention since January 2021.
In summary, we are not satisfied on the available evidence that the applicant has good, or even fair, prospects of rehabilitation through structured supervision and intervention. Even though there is no record of the applicant committing offences while in immigration detention, the weight of evidence is to the effect that there is a moderate to high risk of the applicant reoffending and that the nature of any offending may be of a violent nature. We therefore conclude that this matter weighs heavily against revocation.
Conclusion on protection of the Australian community
For the reasons outlined above, we find that that the protection of the Australian community weighs heavily against revocation in the circumstances of this case.
Family violence
Paragraph 8.2(1) of the Direction provides that “the Government has serious concerns about conferring on noncitizens who engage in family violence the privilege of entering or remaining in Australia”. It is further noted that the Government’s concerns are proportionate to the seriousness of the family violence engaged in by the noncitizen and thereafter the Direction sets out, at subparagraph (3), certain factors that should be considered.
The respondent submits that the applicant has two convictions involving family violence, being an order in March 1998 and the family violence related property damage offence on 4 May 2018. There are no details in relation to the 1998 offence, other than the sentence which was a recognisance of $500 for a period of two years. The second offence was at the lower end of the scale in seriousness. We accept that this offence was serious because it was directed to his sister and her family in their home, the applicant caused damage to the property and the act was potentially dangerous. Against this, the offence was a one-off incident which was not considered by the court to be a serious enough offence that it required a custodial sentence. On balance, this consideration weighs against revocation but not strongly so.
The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia, which relevantly includes the nature and duration of the relationship between the child and the non-citizen.
The applicant has no biological children and even though he has nephews and niece in Australia there is no evidence about his current relationship with those children and the nature and duration of the extent of any of those relationships. In his application for revocation, the applicant states that he was there when his nephews and nieces came into the world but there was no evidence from his immediate family about his relationship with his niece and nephews, their ages or the extent, nature and duration of any such relationship. The respondent submits that this consideration should be given neutral weight. The applicant’s representatives were unable to make submissions on these matters because they could not obtain instructions from the applicant.
On the basis of the available evidence before us, we are not satisfied that this consideration weighs in favour of revocation. We also note that there is no evidence before us that the best interests of minor children in Australia would weigh against revocation. We accept the submission of the respondent in this regard.
Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. We are noncitizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government not to allow such a noncitizen to enter or remain in Australia.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined and states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. However, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are set out in the Direction.[22]
[22] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, and FYBR v Minister for Home Affairs [2019] FCA 500.
The respondent contends that this consideration weighs heavily against revocation because the applicant has committed at least two offences involving family violence and offences against innocent bystanders in the community, with an escalating degree of seriousness and the use of weapons. The applicant’s representative concedes that this consideration weighs against revocation, although it is submitted that the applicant has lived in Australia for most of his life and all his family connections are here. It is therefore submitted that the Australian community “may therefore afford a higher level of tolerance of criminal conduct” in relation to him, consistent with the principles set out in paragraph 5.2(4) of the Direction. The applicant submits this consideration should therefore weigh only moderately against revocation.
On balance, we accept the submission made by the applicant’s representatives and so find.
OTHER CONSIDERATIONS
Paragraph 9(1) of the Direction provides that the decision-maker must take ‘other considerations’ into account where relevant and these considerations include, but are not limited to, international non-refoulement obligations, the extent of impediments to the noncitizen if removed, the impact on victims and the non-citizen’s links to the Australian community, including the strength nature and duration of those ties and the impact on Australian business interests.
Both parties accept that there are no issues arising in relation to international non-refoulement obligations, nor is there evidence before the Tribunal about the impact of any revocation on victims. The critical issues for consideration relate to the extent of any impediments to the applicant if he is removed from Australia and his links to the Australian community.
Extent of any impediments
The first matter is a significant consideration because there is evidence that the applicant’s mental health issues, if not adequately treated and managed, not only exacerbate the risk of criminal offending by the applicant but may lead to homelessness and the risk of self-harm.
We accept that if the applicant is removed to New Zealand, he will not face linguistic or cultural impediments. We also accept that there may be no family support available to him in New Zealand, but this is less significant having regard to the evidence before us which suggests that the applicant does not currently have such support while he is in Australia.
Mental health and other supports available in New Zealand
The respondent contends that the Tribunal should accept that Australia and New Zealand have comparable systems in place in relation to medical care, social supports and housing. In this regard, the respondent relies on the decision of Senior Member Kelly, Tera Euna and Minister for Immigration and Border Protection.[23] This is a useful and broad statement of principle based on common knowledge but in the applicant’s circumstances, broad statements of principle are not helpful to understand the specific impediments that an applicant with serious mental health issues may face following their removal from Australia to another country, in this case New Zealand.
[23] [2016] AATA 301 at [101].
The respondent provided helpful information and submissions in relation to this matter through supplementary tender documents. However, information about whether the applicant would be provided with similar support and services as those currently provided by the New South Wales Trustee and Guardian, and available to be provided by the Public Guardian or through the NDIS, was not provided by either party and was apparently not considered by the delegate. According to counsel for the respondent, this information could not be provided given the short time frames for the review. Those representing the applicant similarly failed to undertake such analysis and submitted it was for the respondent to provide this information.
By way of observation, we note this is an issue that may arise from time to time, particularly where a non-citizen’s criminal offending is exacerbated by mental health issues. We would have thought the respondent, or a delegate of the respondent, would consider these matters at the time of any cancellation, refusal or a refusal to revoke a mandatory cancellation.
It is submitted by the applicant, and we accept, that any guardianship order made in New South Wales will not extend beyond its boundaries.[24] The New South Wales Trustee and Guardian may be able to exercise decision-making outside the jurisdiction in relation to the property and affairs of the protected person, but this jurisdiction is also limited.[25]
[24] Refer to EAK [2013] NSWGT 18.
[25] Ibid at [57]-[58].
According to the Office of the Director of Mental Health Annual Report 2016:
In December 2014, the Australian Government passed legislative changes that set a lower threshold for mandatory cancellation of visas for non-citizens. The new threshold includes non-citizens who have a substantial criminal record, who have been found unfit to stand trial and/or who have been acquitted of a crime on grounds of insanity.
During 2016, the New Zealand Government and the Australian Government conducted their first annual review of the information-sharing arrangement with the Australian Government around removals and deportations between Australia and New Zealand. The Ministry of Health is an ‘approved agency’ under this arrangement: it may receive advance notice of New Zealanders being deported, including their health information, to identify significant mental or physical health needs that will require a health response on their return.
The Ministry of Health contracted Counties Manukau DHB, as the Ministry’s agent, to provide clinical review and triage of health information on deported New Zealanders to ensure that those with significant health issues would receive follow-up and referral to health services on their return.[26]
[26] Exhibit R3, FS1.
This information suggests that if the applicant returns to New Zealand there will be an arrangement where he will be identified as a person who may need assistance when he settles in New Zealand. Furthermore, it appears that there is legislation dealing with the protection of the rights of people in New Zealand with mental health issues, being the Protection of Personal and Property Rights Act 1988 (NZ). Whether this legislation is comparable and gives similar protections as those available to the applicant under New South Wales legislation is unclear. However, it is apparent that the applicant is likely to have access to mental health services in New Zealand and, as such, the extent and impact of the impediment of removal may be mitigated on his return. Despite this, we accept the evidence of Dr Kwok and the submissions of the applicant that continuity in the treatment and management of the applicant’s mental health issues is critical to his ongoing health and well-being. This other consideration weighs in favour of revocation.
Although it is expected by this Tribunal that, in the circumstances of this case, the respondent will arrange to make the appropriate notification to the New Zealand government in accordance with the “information sharing arrangement” submitted by the respondent.
We accept that the applicant has lived in Australia for over 30 years, has worked here and finished his schooling in Australia, and is likely to have links with the Australian community. Even though there was limited evidence about this in the material we have been provided, we accept that this consideration also weighs in favour of revocation.
CONCLUSION
We are required to weigh these considerations in accordance with the Direction.
As already noted, the protection of the Australian community and the expectations of the Australian community weigh heavily against revocation. The extent of impediments if the applicant is removed and the applicant’s links to the Australian community weigh in favour of revocation.
The respondent submits that even though there are impediments if the applicant is removed from Australia and the applicant faces homelessness, these impediments are not so different from those he has experienced in Australia. It was therefore submitted that the impediments and links the applicant has to the Australian community are outweighed by the considerable risks of allowing the applicant to remain, with the protection of the Australian community and expectations of the Australian community clearly favouring the refusal of revocation in this case.
The applicant’s representative submits that the impact on the applicant of being removed from Australia and his links with the Australian community are so significant that they outweigh the primary considerations of the protection and expectations of the Australian community. It is further submitted that the criminal offending of the applicant is not morally culpable, it can be mitigated with appropriate and suitable supports and the Australian community may be prepared to tolerate the risk in the circumstances of this case.
The balancing exercise in a case such as this is difficult. While we accept that there are likely to be significant impediments if the applicant is removed from Australia, the serious risks of the applicant reoffending and potentially causing significant physical or psychological harm to the Australian community are such that we are satisfied these considerations outweigh the other considerations. We are therefore not satisfied that there is another reason to revoke the mandatory cancellation.
DECISION
The decision under review is affirmed.

I certify that the preceding 121 (one-hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Redfern and Deputy President Justin Owen

..................................[SGD]...................................
Associate
Dated: 18 August 2022

Date of hearing: 11 August 2022

Counsel for the Applicant: Ms M Yu

Solicitor for the Applicant:

Ms W Milojkovic,
South West Migration & Legal Services

Counsel for the Respondent: Mr T Reilly

Solicitor for the Respondent Mr T Young,
MinterEllison

[2022] AATA 2649

18 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date of hearing:	11 August 2022
Counsel for the Applicant:	Ms M Yu
Solicitor for the Applicant:	Ms W Milojkovic, South West Migration & Legal Services
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent	Mr T Young, MinterEllison