Thompson and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1245
•10 August 2017
Thompson and Minister for Immigration and Border Protection (Migration) [2017] AATA 1245 (10 August 2017)
Division: General Division
File Number(s): 2016/6310
Re:Harrison Thompson
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date: 10 August 2017
Place:Melbourne
The Tribunal decides to:
affirm the decision of a delegate of the Minister dated 25 October 2016 not to revoke the decision made on 29 April 2016 to cancel Mr Thompson’s Class TY Subclass 444 Special Category (Temporary) visa.
.......[sgd]..............................................................
Deputy President S A Forgie
Catchwords
MIGRATION – mandatory visa cancellation due to substantial criminal record - refusal to revoke mandatory cancellation – decision affirmed
Legislation
Migration Act 1958 ss 499, 501, 501CA
Sentencing Act 1991(Vic) s 9
Direction No.65 made under s 499 of the Migration Act 1958
Cases
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Secondary Materials
REASONS FOR DECISION
Deputy President SA Forgie
On 29 April 2016, Mr Thompson’s Class TY Subclass 444 Special Category (Temporary) visa was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act). He was invited to make representations to the Minister of Immigration and Border Protection (Minister) to revoke the decision and he did so on 17 May 2016. A delegate of the Minister refused to revoke the decision. Mr Thompson has applied for review of the Minister’s refusal. I have decided to affirm that decision.
LEGISLATIVE BACKGROUND
In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which the Minister has cancelled Mr Thompson’s visa. They also provide the basis on which I must consider his request for revocation of the decision.
Cancellation of Visa under s 501(3A)
Section 501(3A) of the Migration Act provides that:
“The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test but only those specified in s 501(6)(c) are relevant for the purposes of s 501(3A). Those circumstances are that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only the first three are relevant for the purposes of s 501(3A) and, in this case, only s 501(7)(c) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.
On 4 March 2015, Mr Thompson was convicted of Unlawful Assault, Commit Indictable Offence While on Bail, Contravene a Conduct Condition of Bail and Use of Threatening Words in a Public Place. Initially, he was sentenced to 90 days’ imprisonment. On appeal, the County Court of Victoria allowed an appeal against his sentence and sentenced Mr Thompson to an aggregate term of 12 months’ imprisonment.
The “aggregate sentence” was imposed under s 9 of the Sentencing Act 1991 (Vic). Subject to qualifications found in ss 9(1A) to (3), s 9(1) provides:
“(1) If an offender is convicted by a court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.
(1A)Despite subsection (1), a court must not impose an aggregate sentence of imprisonment if
(a)the offender is a serious offender within the meaning of Part 2A and any of the offences of which the offender is convicted is a relevant offence within the meaning of that Part; or
(ab)…
(b)the offences comprise at least one offence committed by the offender while released under a parole order and one offence committed at another time.
(2)The term of an aggregate sentence of imprisonment imposed in accordance with subsection (1) must not exceed the total effective period of imprisonment that could have been imposed in respect of the offences in accordance with this Act if the Court had imposed a separate sentence of imprisonment in respect of each of them.
(3)If a court proposes to impose an aggregate sentence of imprisonment, it must before doing so announce in open court, in language likely to be readily understood by the offender.
(a)the decision to impose an aggregate sentence and the reasons for doing so; and
(b)the effect of the proposed aggregate sentence.”
Given that an aggregate sentence of imprisonment is imposed in place of separate sentences, it is to be viewed as a single sentence. Therefore, the aggregate sentence of 12 months’ imprisonment that was imposed on Mr Thompson comes within the description of “a term of imprisonment of 12 months or more” (emphasis added) within the meaning of s 501(7)(c). That means that Mr Thompson’s circumstances satisfied s 501(3A)(a)(i) of the Migration Act.
At the time that Mr Thompson’s visa was cancelled, the circumstances in s 501(3A)(a)(ii) were also met as he was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of, in this instance, of a State. After being transferred to the Maribyrnong Immigration Detention Centre (MIDC) on 18 May 2016 at the conclusion of his sentence and the revocation of his visa, Mr Thompson was then transferred to the Villawood Detention Centre on 18 October 2016. He received psychiatric treatment at the High Dependence Unit at the Liverpool Hospital in New South Wales. In December 2016, Mr Thompson was transferred back to the MIDC before he was removed from Australia on 27 January 2017. He was transferred after consenting to his transfer.[1]
[1] T documents; T53 at 689-690
Representations may be made to revoke cancellation decision
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[2] Section 501CA(4) provides that:
“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.”
[2] Migration Act; s 501CA(1)
On 12 May 2016[3] and again on 17 May 2016,[4] Mr Thompson sought revocation of the Minister’s decision. His then solicitors forwarded submissions and material in support of his request for revocation by letter dated 20 October 2016.[5] Mr Thompson made his request in accordance with the invitation extended to him under s 501CA(3)(b)[6] and has satisfied the requirements of s 501CA(4)(a). In the circumstances of this case, Mr Thompson cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test set out in s 501(7). That follows from the fact that he had been sentenced to a term of imprisonment of 12 months or more. The only relevant provision is that in s 501CA(4)(b)(ii), which requires me to consider whether “… there is another reason why the original decision should be revoked.” The way in which I am required to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[7]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[8]
[3] T documents; T2 at 72-74
[4] T documents; T2 at 62
[5] T documents; T2 at 84-196
[6] The Minister is obliged to extend that invitation to him after making a decision under s 501(3A).
[7] [2016] FCA 1166
[8] [2016] FCA 1166 at [38]
BACKGROUND
In this section of my reasons, I will set out those facts that I have found and that are not in dispute between the parties. Mr Thompson was born in New Zealand in 1994. As a toddler, he moved with his parents first to Bangkok in Thailand and then to Sacramento in the United States of America. In 1998, the family returned to New Zealand and Mr Thompson started school.
When Mr Thompson was almost five years of age, the family moved to Melbourne and Mr Thompson continued his schooling at Scotch College. When his father was made redundant from his employment in 2000, his mother returned to work to support the family. His parents separated in 2004 and Mr Thompson lived with his mother and younger brother. In 2004, his mother re-partnered with Mr Michael Johnson and she moved with her two sons so that all four could live together.
In 2007 when he was in Year 8, Mr Thompson moved from Scotch College to Wesley College. In that year, his uncle, Mr Glen Brenssell, committed suicide at the age of 35 years and was buried in Melbourne. Mr Thompson started using cannabis at school in 2008 when he was 13 or 14 years of age and continued to do so until sometime in 2010 when he was 16.
Convictions
The evidentiary material that I have does not always indicate when Mr Thompson committed the offences of which he was convicted. Therefore, in the following table, I have interspersed various events in Mr Thompson’s life by reference to the date on which he was convicted unless I have evidence of the date on which the offence was committed. In doing that, I recognise that the offences could have been committed up to a year or so before they went to court. I have also set out details of the offences of which he was convicted and the sentence imposed:
Court
Date
Offences
Outcome
In 2009, Mr Thompson was diagnosed with Attention Deficit Hyperactivity Disorder by Dr John Court and was prescribed Ritalin. Mr Thompson completed the eight week Clunes Residential Program at Wesley College. That programme is designed to provide students with holistic independent living and community skills whilst living at Clunes in regional Victoria. Also in 2010, Mr Thompson undertook the City Curriculum Project through Wesley College. That required him to attend a “homeroom” in Melbourne and to engage in independent learning. He did not return to Wesley College after that.
In 2010, Mr Thompson enrolled in Year 10 at The Jon Carnegie School. He was diagnosed with Oppositional Defiant Disorder (Conduct Disorder) by Dr Michael Carr-Gregg on 23 February 2010.
In May 2010, Mr Thompson enrolled at the Brentwood Secondary College but dropped out of his studies.
Melbourne Children’s Court
30 November 2010
Recklessly cause injury affray (common law)
Intentionally damage propertyAttempt robbery
Without conviction, placed on probation for a period of 12 months
Melbourne Children’s Court
28 February 2011
Attempted burglary
(2 charges)
Burglary
Theft
Theft from motor vehicle
Deal property suspected proceeds of crime
Aggravated burglary – offensive weapon
Armed robbery
Recklessly cause serious injuryWith conviction, released on a youth attendance order for the period of 9 months.
Melbourne Children’s Court
31 August 2011
Recklessly cause injury
Theft of a motor vehicleOn each charge: convicted and ordered to be detained in a youth justice centre for a period of 1 month.
Theft from shop (shopsteal) (2 charges)
Escape from lawful custody
Fail to answer bail grantedOn each charge: convicted and ordered to be detained in a youth justice centre for a period of 14 days.
Armed robbery
Convicted and ordered to be detained in a youth justice centre for a period of 10 months.
Intentionally damage property
Convicted and ordered to be detained in a youth justice centre for a period of 1 month.
Recklessly cause injury
Convicted and ordered to be detained in a youth justice centre for a period of 6 months.
Reckless conduct endanger serious injury (2 charges)
Theft of a motor vehicleOn each charge: accused convicted and ordered to be detained in a youth justice centre for a period of 2 months.
Breach of youth attendance order
Proven
31 August 2011
Breach re 28 February 2011
Attempted burglary
(2 charges)
TheftOn each charge, convicted and ordered to be detained in a youth justice centre for a period of 2 months
Breach re 28 February 2011
Theft from motor vehicle
Deal property suspected proceeds of crimeOn each charge, convicted and ordered to be detained in a youth justice centre for a period of 1 month.
Breach re 28 February 2011
Aggravated burglary – offensive weapon
Convicted and ordered to be detained in a youth justice centre for a period of 6 months.
Breach re 28 February 2011
Armed robbery
Convicted and ordered to be detained in a youth justice centre for a period of 7 months.
Breach re 28 February 2011
Recklessly cause serious injury
Convicted and ordered to be detained in a youth justice centre for a period of 5 months.
Breach of probation order
Proven
Melbourne Children’s Court
8 March 2012
Intentionally damage property
Convicted and ordered to be detained in a youth justice centre for a period of 1 month.
Mr Thompson stole a motor vehicle on 7 August 2012. During his arrest, he was shot through the upper arm by the arresting officer. He was left with significant difficulties in the use of his hand.
During 2013, he completed Year 11 English and Maths at Holmesglen TAFE.
Melbourne Children’s Court
31 January 2013
Unlawful assault
Without conviction, adjourned to 30 January 2014 and Mr Thompson released upon his entering a good behaviour bond in the amount of $100.00.
Melbourne Children’s Court
6 June 2013
Possess ecstacy (mdma/mda/mdea/mda’s)
Without conviction, adjourned to 6 February 2014 and Mr Thompson released upon his entering a good behaviour bond in the amount of $100.00.
Mr Thompson completed Year 12 at Holmesglen TAFE having studied Psychology, Business Management, Maths, Health and Human Development and English.
Ringwood Magistrates Court
28 January 2014
Unlawful assault
Without conviction adjourned to 27 October 2014.
Melbourne Children’s Court
Ms Bowles, Magistrate
16 May 2014
Drive in a manner dangerous
Theft of a motor vehicle
Theft from shop (shopsteal)
Enter intersection – red traffic light
Fail to stop vehicle after accident (2 charges)
Unlicensed driving
Deal property suspected proceed of crime
Without conviction, placed on probation for a period of 9 months
Enrolled in Certificate IV in International Trade as part of a Diploma or Advanced Diploma of International Business at RMIT.
Melbourne Magistrates Court
4 March 2015
Recklessly cause injury
(2 charges)Unlawful assault
Commit indictable offence whilst on bail
Contravene a conduct condition of bail
Use threatening words in a public place
90 days’ Imprisonment and 12 month Community Corrections Order
(Sentence increased on appeal to the County Court: see following entry)
Mr Thompson deferred Semester 1 at RMIT.
Melbourne County Court
Sentence imposed by Judge Chettle following Mr Thompson’s appeal from the sentence imposed by Magistrates’ Court at Ringwood
1 April 2015
Recklessly cause injury
(2 charges)Unlawful assault
Commit indictable offence whilst on bail
Contravene a conduct condition of bail
Use threatening words in a public place
Aggregate sentence. Sentenced to 12 months imprisonment. All sentences imposed concurrently.
Minimum of 3 months to be served before being eligible for parole.
Community Corrections Order for 12 months. Order commences upon completion of parole period.
In addition to mandatory terms, Mr Thompson was required to be under the supervision of a Community Corrections Order, to undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager and to participate in program and/or courses that address factors relating to his offending behaviour.
Melbourne County Court
(Judge Allen)
21 August 2015
Armed robbery (2 charges)
9 months imprisonment on each count concurrent.
Concurrent with sentence now serving.
Convicted.
Community corrections order for 4 years commencing upon completion of imprisonment term, to perform 300 hours unpaid community work over 2 years.
Return to New Zealand
Mr Thompson returned voluntarily to New Zealand on 27 January 2017. He has been living with his paternal grandmother who is 85 years of age. A treatment team visited him each day for schizophrenia and drug induced psychosis. That team was organised after Mr Ian Thompson took his son to see a doctor on his return to New Zealand. He has been prescribed an anti-depressant, Venlafaxine, and an anti-psychotic, haloperidol.
BACKGROUND REGARDING OFFENCES COMMITTED ON 7 AUGUST 2012
On 5 August 2015, Mr Thompson lodged a Writ in the County Court claiming damages from the State of Victoria in respect of the injuries he suffered from being shot by the police on 7 August 2012. The Statement of Claim dated 27 September 2016 acknowledged that Mr Thompson was driving a stolen vehicle when he was pursued by the police. Mr Thompson’s vehicle became stuck in the front fence of a property. As he attempted to drive away from the fence, the police officer, who had left his vehicle, shot him in the arm. As a result, Mr Thompson suffered a torn brachial artery and required three surgical procedures. He stated that severe left ulnar, median and anterior intraosseous neurophath, scarring, complex regional pain syndrome and a psychological reaction were the injury he had suffered. In addition to medical, pharmaceutical and other treatment expenses, Mr Thompson claimed loss of earnings and loss of earning capacity and loss of past and future superannuation benefits.[9]
[9] Exhibit G
As well as the seven offences of which he was convicted as a result of events on 7 August 2012 and to which he had pleaded guilty, Mr Thompson had pleaded not guilty to four further charges. They were conduct endangering life (Charge 1), conduct endangering serious injury (Charge 2), assault a police officer in due execution of his duty (Charge 10) and assault police (Charge 11). At the conclusion of the prosecution case, the Magistrate upheld a submission made on behalf of Mr Thompson that he had no case to answer in relation to Charge 10. She found that there was a case to answer on the remaining three but that he was not guilty of them. She found him not guilty because she was not satisfied beyond reasonable doubt that Mr Thompson had been reckless in his conduct i.e. she was not satisfied that, in driving his car through a very narrow gap between the police car and a trailer in order to leave the property, he foresaw the probable consequence of his conduct would create an appreciable risk of death or serious injury to the police officer. The Magistrate could not reject the hypothesis, which is consistent with Mr Thompson’s evidence on the three charges that he was simply seeking to flee and, in order to do so, he did not have to run over the police officer.[10]
[10] Judgment 10 April 2014
In giving evidence, Mr Thompson said that he had some psychiatric treatment from Adolescent Forensic Services and the family helped him. He said that the shooting was a low point in his life. Even though he had not been trying to hurt the police officer, he had stolen a car and was doing the wrong thing.
BACKGROUND REGARDING OFFENCES COMMITTED ON 6 AND 7 JUNE 2014
In his sentencing remarks made on 21 August 2015, Judge Allen summarised the events leading to Mr Thompson’s being charged with two offences of Armed Robbery committed on 6 and 7 June 2014:
“… In the early hours of the morning of 6 June 2014 you were with a co-offender, Mr Booth. Together you drove in a stolen Nissan Skyline to another offender’s premises, Mr Canavan. Mr Booth woke up Mr Canavan and told him that he would be driving.
With the three of you in the vehicle, Mr Booth directed Mr Canavan to drive to the Coles supermarket in Patterson Lakes but it was discovered that it was closed. He then directed Mr Canavan to the Coles supermarket at the Pinewood Shopping Centre in Mount Waverley. The vehicle pulled up outside the supermarket at about 6.30 am.
Mr Booth and you got out of the car wearing facial disguises. Mr Booth was carrying a machete, you were carrying a baseball bat. Mr Canavan sat in the car with the engine running.
You and Mr Booth entered the store and approached the female attendant who was at the main service desk. Both of you demanded that the victim hand over cash from the registers. Mr Booth went behind the counter and menaced the attendant at close quarters with the machete. You told the attendant that she would not get hurt if she complied with your demands. The attendant placed money from the register in a bag that you were holding.
The two of you then took the attendant to another register. She gathered more coins and put them in the bag. She was then taken to a third register but the attendant could not open it. You and Mr Booth then fled the store, taking with you cash and cigarettes to the value of about $2,300.
The three of you then returned to Mr Booth’s unit. Mr Canavan was told to wait there while you and Mr Booth went to Richmond to purchase heroin.
The following afternoon another armed robbery occurred. This time you were driving. You drove another co-offender, Mr Richardson, and Mr Booth to the Hamilton Place shops in Mount Waverley. Mr Booth and Mr Richardson entered a Brumby’s Bakery wearing facial disguises and gloves. Mr Booth was again carrying a machete. Mr Richardson was unarmed.
When they entered the store there was one female attendant present. She was at the back of the store. She came forward when she heard the rattling of the till and saw two men there at the cash register. Mr Booth came over to her holding a machete, saying, ‘Stay out of the way’. She was extremely scared. Mr Richardson grabbed the till and the two of them ran out of the store, Mr Booth telling the fearful sole female shop attendant to ‘stay in the store.’
You were waiting for them. You drove them from the scene of that armed robbery. The three of you returned to Mr Booth’s unit before you all went to Richmond to purchase more heroin.”[11]
[11] T documents; T2 at 44-45
In giving evidence, Mr Thompson said that had been on drugs when he committed these offences with an old friend of his. At the time, he had been out of trouble for a while as he was doing Year 12 but then he got in touch with his old friends. Although sentenced after the fight at home, he committed the Armed Robberies in 2014 and before that fight. Even though he was studying Year 12 at the time, he was still “using lots of drugs and stuff”.
BACKGROUND REGARDING OFFENCES COMMITTED ON 4 FEBRUARY 2015
The Additional Documents (AD Documents) contain statements of witnesses to events that occurred outside the home of Mrs Thompson and her family. Her husband, Mr Michael Johnson, made a statement to police regarding an incident at his home earlier in the day. At the time, his younger stepson was 13 years of age and his elder, Mr Thompson, was aged 20 years. Mr Johnson stated that, for at least three or four years, they had been experiencing problems with Mr Thompson because of his drug taking. When he arrived home from work on the evening of 4 February 2015, he found his wife on the telephone to her elder son who was asking her for money. She refused to do so. Her son arrived at the house at about 7:00 pm demanding money and telling Mr Johnson that he would kill him if he did not give him any. Mr Johnson said that the two of them were arguing about money when Mr Thompson came at him and started hitting him in the face and head with his fists. His wife tried to pull her son from him but he continued hitting Mr Johnson. Mr Johnson was knocked to the ground but Mr Thompson kept hitting him. Mr Johnson recalled his stepson’s saying to him that he would kill him if he did not give him money. Mrs Thompson and her elder son left the house.
Another statement was made by a neighbour of Mr Johnson and Mrs Thompson. The neighbour reported events from approximately 7:45 pm. The neighbour stated:
“I heard somebody screaming and a women [sic] yelling for help so a [sic] raced over to the fly wire door and looked outside. On my front lawn I could see Harrison, a boy who has lived across the road from me for around five years, standing over the top of his mother who I recognised but I don’t know her name.
His mother was lying on her back on the ground and she had her arms in front of her face trying to protect herself. Harrison was standing over the top of her, repeatedly punching her and kicking her over and over. I can’t really remember where the punches and kicks hit her, it all happened so quickly. I just remember he hit her and kicked her a heap of times. While he was hitting her he was yelling, ‘Give me the knife you fucking bitch, you’re a drunk’. I didn’t see the knife, but my three children who were watching from the balcony upstairs told me that they all saw the knife. The whole time he was yelling though she just kept screaming, ‘no’, back at him.
I closed the door and called triple zero. After I got off the phone with them, I looked out the window and could see Harrison’s mother running to the neighbour’s house and banging on the door, which nobody came to. I opened my front door and called out to her to come inside and she half ran over to me. She begged me to call police and an ambulance. She looked scared, petrified even, and turned and ran back into her house.
I could hear lots of banging and crashing coming from inside the house over the next few minutes before their other son … and his step dad came outside. …[Their other son] was pushing his step dad to stop him from going back inside and I could hear him saying, ‘You can’t go back inside, he’ll kill you’.
The garage door then opened and her Range Rover pulled out of the drive way. I could see Harrison in the passenger seat and his mum was driving. They headed towards Herriots Boulevard.
I saw Harrison’s step dad again and I could see that he had blood all over his face and his shirt was ripped open. He seemed extremely agitated.
I’ve seen Harrison like this before so it really wasn’t a shock to us. It was just a matter of when really.”[12]
[12] AD Documents; AD1 at 7-8
At approximately 8:18 pm, a truck driver witnessed an incident when he had stopped at traffic lights waiting for them to turn:
“… I noticed a female running across England Road, which was opposite in my direction. She was running parallel to Blackburn Road in the East direction. There was a male, Caucasian; shirtless appears to look very fit, running after the female.
The man caught up with the female, he then … [illegible] his left arm across the female by the shoulders around the neck from behind. The male start [sic] punching the female in her face with his right hand. I realised that something untoward is going on, I then called 000 to report what I saw.
The man flung the female around causing … [illegilble] to her feet, she fall to the ground on her back. He then jumped on her with legs across her neck and had really pinned her down. The male then proceeded to punch her in the face full on. Both the man and the female tussled on the ground, however, the female somehow managed to get up and ran back to her car which was still stationary at the traffic light intersection …”[13]
[13] AD Documents; AD 1 at 9
In his oral evidence, Mr Thompson said that the fight had taken place when he first started having psychoses. He was not being treated for them and he was on drugs at the time. He asked his stepfather for money to purchase drugs and for gambling. He hit his stepfather and wanted his mother to drive him to the ATM for money. At the time, Mr Thompson said, he was aggressive. He could recall grabbing his mother by the hair and “stuff like that”. While the police report states that he punched her, Mr Thompson said that his memory is hazy but he could recall hitting her in the back of her head. At the time, he was using the drug Ice.
Mr Thompson said that he felt “pretty bad” about the fight even though he had wanted to do what he was doing. His mother had been trying to get him back on track and to help him. He feels regretful because his actions were disrespectful of his mother and he had acted shamefully. His little brother has been upset and Mr Thompson said that he feels remorseful about what he has done to the family.
INCIDENTS IN IMMIGRATION DETENTION
Since 20 May 2016 when he was placed in immigration detention and 27 January 2017 when he was escorted to the Melbourne Airport, SERCO had recorded a number of incidents. Of itself, the fact that an incident is recorded does not mean that a detainee has, for example, been involved in a disturbance or an altercation. So, for example, incidents were recorded when an ambulance was called on 10 August 2016 and again on 5 October 2016 because Mr Thompson was complaining about chest pain. Another was recorded on 8 August 2016 when he presented to a SERCO Officer with superficial cuts on his left wrist.
Incidents are graded as minor and major. The ambulance and self-harm incidents are both classified as “major”. Fifty minor incidents are recorded in relation to Mr Thompson. A considerable number of them relate to his taking his clothes off and running around naked or exercising naked in the outdoors but when, as happened on 1 September 2016, he refused to put his clothes back on or to communicate with staff leading to his being restrained by SERCO officers, the incident is classified as “major”. An incident when Mr Thompson was said to have been aggressive and abusive towards officers when they tried to prevent him from escaping on 2 August 2016 was also described as “minor”. Altercations between Mr Thompson and other detainees have been variously classified.
THE MEDICAL EVIDENCE
Dr Judy Tang
The International Medical and Health Services (IMHS) at the MIDC asked Dr Judy Tang, a Neuropsychologist, to prepare a report to characterise Mr Thompson’s cognitive strengths and weaknesses in a background of behavioural difficulties at the detention centre. In her report dated 26 July 2016, Dr Tang set out a comprehensive summary of Mr Thompson’s statements at her session with him on 29 October 2015 and 5 November 2015. She also set out his previous treatment, drug and alcohol history, his educational and occupational history, his forensic history and the observations that she had made regarding his presentation and behaviour.
As Mr Thompson had terminated her first session after only 30 minutes and had declined to attend the second, Dr Tang had not been able to provide an indication of his current cognitive function and decision-making capacities. She was concerned that psychological and psychiatric services had been withdrawn as the result of his disruptive behaviours at the MIDC. In her opinion, significant psychological intervention and behaviour management should be provided to modify his behaviour. Without such support, he was likely to place himself in harmful situations or return to incarceration in the future. Dr Tang referred to Mr Thompson’s having a past history of intentionally provoking fellow inmates. His behaviour led to there being concerns for his own safety.[14]
[14] AD Documents; AD3 at 25
Dr Tang undertook a subsequent assessment dated 8 August 2016.[15] She administered the Wechsler Adult Intelligence Scale, the Wechsler Memory Scale, Rey Auditory Verbal Learning Test, Delis-Kaplan Executive Function System, Re-Osterrieth Complex Figure Test, the Million Clinical Multaxial Inventory-III and the Test of Memory Malingering. Dr Tang reported that Mr Thompson’s level of engagement in the assessment process, which took three hours, was variable. He failed three independent tasks assessing suboptimal effort and/or malingering. That meant that his performances on the assessment are not an accurate reflection of his true cognitive difficulties. Dr Tang based her opinion on his having performed well below the cut-off score of 12 on the RAVLT effort equation, his failing a visuospatial test of effort and, on Trial 2 of the Test of Memory Malingering, having scored 13 out of 50. That score of 13 out of 50 indicated that Mr Thompson tended to select the incorrect answer over and above chance.
[15] T documents; T2 at 121-127
After setting out details of the tests and of Mr Thompson’s performance and despite his variable effort in attending to the tasks he had been asked to do, Dr Tang assessed him as having, overall, performed within normal age expectations. She was of the view that he presented with intact cognitive capacity to make formal decisions.[16]
[16] T Documents; T2 at 127
Dr Kevin Ong
Dr Ong is a Forensic Psychiatrist, who prepared a report at the request of the Health Services Manager of the IMHS at the MIDC. The request had been made to seek diagnostic clarification and to assess Mr Thompson’s ability to make a decision regarding his voluntary repatriation to New Zealand. As well as the request for the report, Dr Ong had a Neuropsychology report dated 8 August 2016 by Dr Tang and progress notes dated 3 August 2016 by Consultant Psychiatrist, Dr Subramaniam. He interviewed Mr Thompson for an hour at the MIDC and set out a comprehensive summary of his interview.
Dr Ong noted that the Mobile Forensic Mental Health Service within Victoria’s prison system had been unable to reach a diagnostic conclusion in relation to Mr Thompson. He had presented to the service in an unusual manner and was uncooperative with assessment. There had been a suggestion that he was deliberately exaggerating his symptoms. Dr Tang had concluded that Mr Thompson was essentially cognitively intact at a level where he could make informed decisions. Dr Subramaniam had concluded that Mr Thompson’s presentation did not appear consistent with mental illness. Staff at MIDC had reported fluctuations in Mr Thompson’s behaviour.
Dr Ong noted that Mr Thompson’s history of disruptive behaviour, association with antisocial peers, disciplinary problems, property damage (graffiti), truancy and substance abuse would see him meet the criteria for conduct disorder of adolescence. That appeared to have evolved into antisocial traits during his adulthood. His substance abuse has contributed to his offending both because it dis-inhibits his behaviour and because it generates a financial need.
In his opinion, Dr Ong agreed with others that:
“… Mr Thompson has presented as a diagnostic dilemma. Taken on face value, his reported symptoms would appear to be psychotic in nature. However, there is an exaggerated quality to his reports (for example, his claims that voices are present during the entirety of his waking hours are not consistent with how genuine auditory hallucinations would present, as these are far more likely to be episodic in nature), his symptoms appear to be inconsistent, and episodes of bizarre behaviour appear to have been designed to gain maximum attention from staff. In addition, his repeated mentioning to me during the interview that he wished for me to consider his experiences as ‘not just schizophrenia’ appeared to be actually designed to anchor the interviewer to consider that very possibility.
…
Despite the above, I would agree with Dr Subramaniam’s assessment that Mr Thompson is a vulnerable young man with maladaptive coping skills. He is at risk of decompensation in mental state, resulting in potential escalation in problematic behaviour (including possibly engaging in self-harm) as the reality of his situation dawns on him. He should be afforded close monitoring of his mental health needs as a result.
Given that Mr Thompson is cognitively intact, and that he does not appear to be suffering from a major mental illness, it is my opinion that he is likely to have the capacity to make informed decisions regarding his healthcare, as well as understanding the effect of the form he previously signed.”[17]
[17] AD Documents; AD2 at 21-22
Dr Kadhem Majeed
Dr Majeed is Mr Thompson’s treating Psychiatrist in New Zealand. Her patient had been referred to psychiatric emergency services shortly after he arrived in New Zealand in January 2017. She reported that he presented with paranoid schizophrenia of significant severity affecting his mood and most domains of his functioning. The current severity of Mr Thompson’s condition made Dr Majeed suspect that he was presenting with some mood and behavioural changes for a number of years before the psychosis finally manifested itself. She concluded that:
“… Therefore there may be some grounds to suspect that violence that he displayed and led to his incarceration to prisons in Australia and subsequently his deportation to New Zealand was partly driven by the mental illness process.”[18]
[18] Exhibit B
Dr Michael Crewdson
Dr Crewdson, a Clinical and Forensic Psychologist, wrote a report dated 2 February 2017. He has known Mr Thompson in a professional capacity for four years. In that time, he has assessed Mr Thompson first at the Juvenile Justice Centre at Parkville on 15 August 2012 and then at the Port Phillip Prison and at the MIDC. He has also talked with him by telephone. Dr Crewdson has also had considerable contact with Mr Thompson’s parents, with Youth Justice workers and his case manager. In all, he estimated that he had seen Mr Thompson on nine separate occasions and had engaged in additional telephone contact over some 20 hours. He had read a neuropsychological report by Dr Judy Tang dated 8 August 2016. Dr Tang’s report had been commissioned when Mr Thompson was clearly ambivalent about whether he wanted to return to New Zealand.
In his opinion, Mr Thompson’s abuse of, and dependence on, methamphetamine is very relevant in his being convicted of domestic violence related offences and armed robbery in the County Court on 1 April 2015 and 21 August 2015. A very significant factor in those offences was his deteriorating psychological state in which he was developing a paranoid delusional condition of a schizophrenic nature which has only been manifested relatively recently. In Dr Crewdson’s opinion, an important factor in Mr Thompson’s psychological condition was the post-traumatic effect of being shot by police when he sustained severe orthopaedic and neurological injuries.
Quoting from his earlier report dated 16 August 2012, Dr Crewdson said that Mr Thompson had regarded himself as being lucky to be alive after he was shot in the upper left forearm. He realised that the bullet could have entered his body in the chest and caused much more serious damage to him but also realised that his “close call” with death had arisen directly from his own pattern of conduct. Dr Crewdson reported that Mr Thompson had said:
“I keep wondering why I made such choices. It all had (the quality of) doing something for the thrills. A sort of game. This has been a really big ‘wake-up’ call.”[19]
At the time, Mr Thompson rejected the idea of any counselling as he was sceptical of its value based on his past experience. Dr Crewdson was anxious that his resolve to change his behavioural patterns should be facilitated for the benefit of both his family and the community generally.
[19] Exhibit A; FN 1
After Mr Thompson pleaded guilty to a number of offences, the court directed that Mr Thompson consult Dr Crewdson professionally. Those consultations occurred on 22 August 2013 and 11 September 2013. During those consultations, Mr Thompson denied any reversion to drug use but Dr Crewdson understood that not to be true. Dr Crewdson reported on his assessment of Mr Thompson at that time:
“… While he seemed to be engaged in the therapeutic process and had been performing well in his pre-matriculation studies at Holmesglen College of TAFE he was still struggling with the experiences of his shooting injury. Harrison still had some issues related to anxiety and a degree of dysthymic response related to his injured arm and the subsequent contracture of his fingers.
He was subsequently charged with further offending. In discussing the possibility of a bail application I was asked to give advice to his legal representatives on September 10, 2014. I said that in my professional opinion, it would be highly desirable that he should continue to reside with either of his two parents (Denise and Ian). Though divorced they had (and continue to have), an amicable relationship and in my opinion could be relied on to ensure that he acted in accordance with any residency condition which might be imposed. I was particularly concerned that interference to his studies should be minimised where possible. They are still an important part of his re-entry to the community in general and his future as a university student. He had well thought out plans.”[20]
[20] Exhibit B at 9
Dr Crewdson said that he had initially offered therapeutic assistance but he has since come to the view that:
“… In retrospect , his psychological deterioration was exacerbated by continuing drug use with stimulants including methamphetamine and association with a highly undesirable peer group which was alien to his upbringing and private school education. The nature of his behaviour had possibly masked the underlying development of both dysthymic functioning and prodromal factors which have only subsequently become manifest in a schizophrenic form of disorder.
There is now a strong argument that an underlying vulnerability exacerbated by the circumstances of the shooting and its sequelae has been exacerbated. It can be argued that this is through lack of effective psychological and psychiatric intervention together with social control required in the supervisory processes which were supposed to be in place. This is not say that an individual does not have responsibility for their own welfare but age, general life experience, and the nature of an underlying psychological disorder may well place that beyond the resources of a particular person. In such a situation parents and the community also have a responsibility. This is particularly the case when an individual’s liberty is curtailed. The documentation provided to me by his parents in unsuccessfully seeking information from the correctional system suggests that there has been a further failure in this regard.”[21]
[21] Exhibit B at 9-10
Dr Crewdson noted Mr Thompson’s behaviour at the MIDC and particularly his removing his clothes in inappropriate circumstances, episodes of self-harm and acting out behaviour directed by auditory hallucinations. Mr Thompson had been experiencing “thought broadcasting” and thought that everyone knew what he was thinking. There were “Angels” whom he thought were supportive of him but whom he later found to be authoritarian and punitive and expressed lethal intentions towards him and his family. Dr Crewdson reported that Mr Thompson had referred to the Angels’ inhabiting his head for many months. When Mr Thompson struck a Serco officer who was accompanying him to the dentist and tried to escape, he thought that he was going to be killed.
In Dr Crewdson’s opinion:
“… Harrison does suffer from a schizophrenic disorder. There are delusional elements and evidence of auditory hallucination involving the presence of ‘Angels’ who direct his behaviour on occasions. Additionally, I believe there are unresolved elements of a post-traumatic stress disorder arising from the shooting. There are also personality issues of a generally diffuse nature and while there is a background of antisocial activity in respect of the offending I do not believe that he qualifies for a formal classification of Antisocial Personality Disorder. He has also had a poly-substance abuse dependence disorder particularly involving alcohol and methamphetamine.”[22]
[22] Exhibit B at 11
Dr Crewdson said that Mr Thompson’s continued ambivalence, vacillation, lack of cooperation and prevarication can be considered to be part of his attempt to reconcile elements of mental confusion between his inner world and his perception of external reality. Elements that have led to his condition are those of instability arising from the family’s move from New Zealand to Australia and the subsequent breakdown of his parents’ marriage with psychosocial influences as a result of his father’s loss of employment when he was prepubescent. He faced further stressors when his mother re-partnered. Dr Crewdson referred to Mr Thompson’s being naughty or having difficulty in settling at various schools. Although he was restless at school, he did not appear to meet the full criteria for an Attention Deficit Hyperactive Disorder (ADHD). Mr Thompson reported bullying at school and his struggle to be acknowledged and accepted. His parents expressed concern about the schools’ responses. Dr Crewdson was of the view that the shooting was a major precipitating factor in Mr Thompson’s current condition.
“… [T]here is internal and non-conscious conflict in attempting to resolve the situation which was life-threatening; attributable to his own initial decisions; and conflictual in aspects of claims which were subsequently demonstrated to have been wrong, that he had endangered the life of a policeman.”[23]
[23] Exhibit B at 13
Dr Crewdson had been asked to prepare a report that reflects on the likely impact on Mr Thompson’s psychological health and welfare, in the short and long term, if he were returned to New Zealand as has happened. He has reported that his parents are in solid personal situations and capable of providing considerable emotional and material support for their son’s therapeutic rehabilitation. That will be considerably hampered if their son is not in Australia. If permitted to live in Australia, he would be subject to the compulsory programme put in place by Judge Allen. There will be a framework of supportive and firm discipline to assist him in addressing his psychological/psychiatric matters and come to terms with his less than desirable experiences while in custody and in detention. If he were to return to New Zealand, Dr Crewdson’ opinion was:
“… With his family he moved to Australia before he turned five and went back to celebrate this birthday with his friends whom he then had to leave again. He has had no real connection with his native country since.
There is little in the way of family support there, other than his paternal grandmother who is both old and not in good health. He has no awareness of social structure in that country and no basis of support other than the rudimentary assistance that he would obtain on arrival.
While he is intelligent Harrison has no particular skills that would permit him to gain effective employment or to explore his own potential.
Without any resolution or effective management of his psychiatric/psychological condition he is likely to revert to the use of illegal substances as a form of self-soothing and emotional regulation. The fact that he has a mental illness, combined with the trauma and stigmatisation of removal from the country that he has regarded as his home for more than 17 years, would be an extremely adverse interaction.
In my view he would inevitably deteriorate. It is appreciated that he could potentially access psychiatric/psychological/social services there with liaison from Australia. However this is much easier to propose than to implement. Mental illness and social stigma and behaviour which has been based on ‘innovating’ illegal responses to social and personal needs are likely to predominate until events occur which bring him into conflict with authority or notice with the mental health system. Even then there are limitations as to the length of time that an individual is likely to be held in treatment on an in voluntary basis.
When people return to the community both from prison or psychiatric treatment – particularly without effect support – they are very vulnerable. Suicide data in such a context is disturbing.
He will have little to sustain him in New Zealand. His family is here, and in the circumstances of deportation he has no possibility of ever returning. There are limits to the nature and extent of support that can be provided at this distance.
My very real concern is that not only would he relapse into established patterns of behaviour but in desperation he may become suicidal. That is a risk not to be ignored.
…
He is vulnerable psychologically [physically] and socially. To my understanding there is scant support for him in New Zealand and risk of further psychotic decompensation could escalate exponentially.”[24]
[24] Exhibit B at 16-17
JUDGE ALLEN’S SENTENCING REMARKS
In imposing sentence for two charges of Armed Robbery, Judge Allen set out Mr Thompson’s history in some detail. I will set out part of what he said:
“To your credit, you have time with the immense support, sometimes overwhelming support of your parents, particularly your mother. You have attempted to continue your education. There have been moments of real light and hope that have appeared along the way.
…
I agree with the assessment that you are both an intelligent and articulate young man. It must be unbelievably heartbreaking for your parents to experience your relapses into drug abuse and then into crime and back into custody again, but they do not give up and I hope you do not give up either because eventually you will get there.
…
I have made it clear what the tension is. You committed those armed robberies, they were very serious. Your victims were young women or girls working part time in a Safeway store and although you did not go into the Brumby’s shop, you are nevertheless culpable. You knew what was going to happen.
You were 19 at the time. Young, immature and affected by drugs but that does not excuse your conduct in any way, as you know.
I have decided that the appropriate sentence is as follows. On the two charges of armed robbery, on each charge you will be sentenced to be imprisoned for nine months. They will be served concurrently with each and concurrently with other sentences you are presently serving. What that means is that nine months from today you will be eligible to be released.
That will be followed by a four year community corrections order. The first two years of that will be what is called intensive compliance. During the first two years there will be conditions that you undergo assessment and treatment in relation to drug addiction, and assessment and treatment in relation to alcohol abuse. You will be under supervision and you will be subject to judicial monitoring. That is, you will be coming back before me every few months to see how you are going.
There will also be special conditions. You will be required to perform over those two years 300 hours unpaid community work. One hundred hours spent in treatment and rehabilitation may be credited against the community work. That will only leave 200 hours to actually be performed.
There are special conditions that you attend upon Mr Michael Krutzen for psychological counselling at such frequency and for such period as directed by Corrections. …
… The next special condition is that you attend upon Dr Julie Doswell, Camberwell Junction Medical Centre, for regular drug screening as directed by Corrections and when and if your family attend for counselling at the Bouverie Centre, you are to attend with them …
…
You will be required to attend for the first judicial monitoring review on 19 August 2016 at 9.30 AM before me. At that date you will be in the community, hopefully you will be studying or working and I will be receiving a report from Corrections which I expect will be telling me you are doing extremely well.”[25]
[25] T documents; T10 at 314-315
Judge Allen indicated that, had Mr Thompson not pleaded guilty to the two charges, he would have imposed a sentence of five years’ imprisonment with a minimum of three years. That would have been a sentence that took into account his youth and difficulties.
THE EVIDENCE OF MR THOMPSON AND HIS PARENTS
Mr Thompson agreed with the Minister’s solicitor, Mr Powell, in cross-examination that he had seemed to be getting his life back together in 2013 and 2014. He was attending the Holmesglen TAFE and that made him stay out of trouble. Although he was getting his life together, he still had a drug problem as he was taking drugs at the weekend. Most of the time, he did not associate with his old friends but, when he wanted drugs, he went to them. He met new people and started to hang around with them so he was doing the right thing through the week and drugs at the weekend. At first, he did not take drugs on every weekend but then he did. Then, he started to use drugs on weekdays as well as on weekends.
At the time, he was living at home with his mother, stepfather and brother. Mr Thompson thought that his mother knew what he was doing but did not know what she should do about it. On a few occasions, she approached him about his problems but he just told her that he was not taking drugs. He lied to her and would not accept help but knew that help was there for him. He had a supportive family and a family friend was mentoring him.
Since he has been in New Zealand, Mr Thompson said that he has not been employed but has been receiving social security benefits of $175 per week. His father takes $100 from it to give to his grandmother for his support and gives his son approximately $70 per week. If he were not living with his grandmother, Mr Thompson said, he would not be able to survive on that amount, he said. He has been staying at home with his grandmother and does not have any friends. Mr Thompson has an Aunt who lives about 30 or 40 minutes’ drive away. She and her husband have two children aged 17 and 19 years of age. His Aunt works full-time and her husband has his own business. At this stage, he is not providing much support to his 85 year old grandmother because of his mental health issues. Most of the time, he just sits outside the house.
In giving his evidence, Mr Thompson said that he no longer uses Ice and had not used illicit drugs since he went to gaol in 2015. He had started using drugs when he was 15 years of age. He used cannabis, Ice and heroin. When he was charged with offences at the start, he thought that it was “cool” and so the charges did not bother him. In cross-examination, Mr Thompson said that he knew the difference between right and wrong at the time but still chose to act as he did. The police were not a deterrent for him because he was happy being part of the group that he was with at the time. He wanted to “do that sort of stuff”.
Mr Thompson said that he wants to change. When asked by his barrister, Mr Baume why he would not re-offend, Mr Thompson said that he is now off drugs. He has matured a lot since he committed the offences and he does not want his life to go down that road. He has not “really spoken” with his old friends since he has been back in New Zealand. One messaged him and asked how he was feeling.
Mr Thompson repeated in cross-examination that he had not used drugs since he had been back in New Zealand and had not been given any. After being reminded by Mr Baume of the importance of being truthful, Mr Thompson said that he had used drugs when he arrived in New Zealand and his father was yet to get there. He used Ice and told his father what he had done as he can be quite open with him. His father was disappointed in him and he understood why his father would feel that way. Since his father had been in New Zealand, Mr Thompson said that he had stayed home other than to go out for cigarettes or food. It is important to him to stay clean.
Mr Thompson said that it would be better for the family if he were permitted to live in Australia. Apart from his family, he guessed that he could be happy in New Zealand but he did not want to be in a position where he was not seeing his mother. New Zealand represented a fresh start for him but it was a start without his family. If he were permitted to return to Australia, Mr Thompson said that he was aware that he would be subject to the four year Community Corrections Order imposed by Judge Allen. That Order had been stayed as he was not in Australia and not permitted to return at this stage.[26] Mr Thompson thought that his having to abide by the Community Corrections Order would help him to get his life back on track and get him into a good routine. It was his hope that the services would find him work. He was aware that he would need to find treatment for drug addiction and for alcohol.
[26] Exhibit H
Since he has been in New Zealand, Mr Thompson said, his mental health has not been that good but he is not scared now. He is not a danger to anyone or to himself but he has a lot of anxiety. His mental health had not been bad when he wrote to Judge Allen:
“I know my history is appalling and I’ve burnt a lot of bridges in the past by spoiling the chances people have given me. However despite the impression you get from my criminal record and the offences that have been brought before your honours eyes, I know I’ve come a long way since almost all of this offending, the main problem since then has been relapses into drugs, especially ice. This was the reason behind both the sets of offending that landed me in jail. I understand you have a responsibility to serve the best interests of the community by keeping anyone that is a threat to the safety of the community inside and not out on bail. However, would you please make an exception with me [sic] I know I have a lot of potential which I have not made the most of, I took the people around me for granted and went against my family’s values because I was thinking only about myself I really regret it. I understand that if I’m released on bail I have a responsibility to do the right thing and abide by all the conditions imposed by the court. I’m asking you to please give me this opportunity so I can get out of jail and start making decisions which are going to have a positive impact on my future and those around me. I’m 20, turning 21 if I don’t turn my life around I’ll never have the life that’s going to make me happy and I know I would regret that for the rest of my life. I should never have started using ice again, it’s the reason I was around those sorts of people in the first place which is what led to my offending. This opportunity means a lot to me it gives me the chance to make amends with my family and change my life. …”[27]
Mr Thompson had written that, on his release from prison, he would live with his father. That would help him to stay out of trouble and so would his continuing to receive treatment and taking his medication.
[27] T documents; T47 at 575-577
Mrs Denise Thompson expressed her deep concerns about her son’s treatment in prison and what she felt has been its failure to diagnose and treat him for his deteriorating mental health. She felt that his mental health explained his inability to get along with fellow inmates in the prison system. She stated in her oral evidence that her son is well aware of the impact that his offending has had on his victims, his family and himself and the fact that his offending has stemmed from his drug use. She said that he has expressed remorse to her both verbally and in letters. He has told her that he has been clean for the duration of his prison sentence and is committed to getting on-going help to prevent any relapse on his release. Mrs Thompson saw this as a significant step as, previously, her son had thought that he could manage the situation on his own. Most of the time, she said, he was able to do that but the relapses that he had led to significant consequences for himself and others.
Mrs Thompson said that her elder son had been very close to his uncle who had baby sat him when they lived in New Zealand. As he was only 14 years of age when his uncle committed suicide, Mrs Thompson felt that her son bottled things up and seemed to be in a bad mood more than he had previously been. She also felt that the events leading up to the separation of her and her first husband had a big impact as well as the separation itself. When her husband was made redundant, he took on the parenting role and she went to work. So, she said, it was not just the separation and the divorce that had an effect on her elder son but everything leading up to it.
Mrs Thompson’s mother, Mrs Patricia Brenssell, had moved from New Zealand to Australia in 2007 to be closer to her and to her other child, Glen, who committed suicide in 2008. Mrs Brenssell suffers from Chronic Obstructive Pulmonary Disease (COPD) and is very dependent on her for company and support and assistance with tasks such as shopping and attending medical appointments. She has had a close relationship with her elder grandson but, Mrs Thompson said, would be devastated if she had to sell her house here and leave her son, Glen, in his grave in Melbourne in order to return to New Zealand.
Mrs Thompson’s younger son, is still at school in Melbourne. He has known no other home as he was born in Australia. Mr Thompson has not had a lot of contact with his brother but recently he told him to study hard. Mrs Thompson said that her younger son had never visited him in gaol or in the detention centre. His reason for not doing so lay partly in the existence of an intervention order and partly in her view that prison and the detention centre were awful places and she did not want her younger son to see those places.
Her husband’s two children live in Sydney. Mrs Thompson said that she still loves her elder son as much as she ever did but she has been limited in her ability to have contact with him by reason of his incarceration and detention and by the nature of his illness. If he were permitted to return to Australia and lived with his father, she would also be there to support him. His father has had great success in getting him to be compliant in taking his medication. His living with his father would be a success, she thought, but she would also be involved.
When asked in cross-examination what she thought of being both a mother and a victim of her son, Mrs Thompson replied that she did not feel like a victim. She is not afraid of him. It was the drugs and his illness that made him act in that way. The only injury she suffered was a fat lip. That is not to say that her experience on the night was not terrible but, despite that, she supports her son one hundred per cent. Her husband does so also. He had written asking that his elder stepson not be charged. They knew that he was on drugs and wanted to help him. Being locked up was not going to help him. Mrs Thompson and her husband have had numerous conversations in which her son has told them that he feels terrible about what he has done.
It would be difficult for her to return to New Zealand to be with her elder son. Her younger son sees his father every second weekend. He is in Grade 11 at a very nurturing school and plays sport. Her husband has undergone by-pass surgery and he was starting a new job after being without work for over a year following his operation. The family’s contacts are in Australia and not in New Zealand. She would have difficulty finding work and, in any event, she could not return until her younger son had completed his schooling. Mrs Thompson said that, without work, she could not support her son in New Zealand. She summarised her position in a letter to the Tribunal:
“… It would break my heart to have to see him return to New Zealand alone and unsupported. However to return with my husband and youngest son would mean sacrificing the relationship my husband has with his children and putting Harrisons needs ahead of what is best for my youngest son … and my mother. I realise it is Harrisons actions that have lead to this situation but you have the power to give him another chance, so please do not put me in this impossible position.”[28]
[28] Exhibit D
Mr Ian Thompson, who is Mr Thompson’s father, is an Aviation Consultant specialising in air traffic control. In the main, he works from home. While he could do the same work in New Zealand, the range of work is not available to him in that country as it is in Australia. He wrote that his son has had an illicit drug problem since his teenage years. His decisions to use these illicit drugs have resulted in a cycle of associating with people of poor character and criminal behaviour. That cycle, he said, has resulted in his son’s being convicted of offences as a juvenile and as an adult. Mr Ian Thompson wrote in his letter dated 2 February 2017:
“Despite these convictions, Harrison has demonstrated an ability and willingness to act as a positive member of Australian society. Harrison dropped out of school mid-way through Year 9, as a 14 year old. In 2014, as a 19 year old he returned to Holmesglen TAFE and studied for his VCE and studied for his VCE. Although he had spent many years away from formal school system he was able to achieve a pass in VCE. As a result he was successful in being accepted to a course of study at RMIT University in Melbourne.”[29]
[29] Exhibit F
Mr Ian Thompson referred to his son’s convictions in February 2015 for assaulting his mother and his stepfather and of armed robberies in August 2015. He and his former wife were both concerned about what they saw as lack of appropriate help for their son while he was incarcerated and in detention. Mr Ian Thompson wrote in a letter dated 2 February 2017:
“I am extremely concerned that Harrison does not have the capability to look after himself and receive the support he needs now that he had been deported to New Zealand. Harrison’s relatives in New Zealand include an elderly grandmother plus an uncle and aunt. He has had very little contact with these people since leaving New Zealand at 3½ years of age. Furthermore, it is not realistic to rely on the support of these people with Harrison’s mental condition.
On arrival in New Zealand Harrison was placed in transitional housing by the Salvation Army. My mother, aged 85, did not consider that she could look after Harrison on her own. While she is still intellectually capable, my mother is now physically frail.
I returned from holiday on 29 January and became very concerned about Harrison’s ability to look after himself on his own in New Zealand. I flew to Wellington on 31 January. My mother is willing to have Harrison stay with her provided I also do so. This is not a viable medium term solution.
I operate as a sole-trader management consultant in Melbourne specialising in traffic control. It is extremely difficult for me to relocate back to New Zealand and re-establish my business. New Zealand is not of sufficient size to generate the projects for me to conduct my work. Melbourne has been my home for over 16 years and I have few ties to New Zealand.
In order to grow my business, industry profile and expertise I am a contributing writer for the Australian Aviation magazine. The magazine articles that I write are largely based on Australian air traffic control topics. Relocating to New Zealand would make it very difficult to continue my magazine writing. Attached is a copy of one of my articles.
I am also conducting PhD research and study through La Trobe University. My study is exploring the change management issues that impact air traffic control organisations from realizing benefits from major systems projects. It is a comparative study of the United Kingdom and Australian air traffic control organisations. Attached is an academic article related to my research that has recently been published.
A PhD program of study and research is extremely exhaustive and complex. I rely on the support, guidance and academic input from my supervisors and other PhD students. As a part time student I have eight years to submit my thesis, with completion by 14 February 2019. The necessity for me to relocate to New Zealand for an extended period will almost certainly mean that I cannot meet the deadline to complete my study. I am also very concerned that I will not have the access to all the support that I need, which presents the real risk that I will need to withdraw from the course.
I have made a commitment to the court for Harrison to live with me when he is released from custody. Despite past events, I still have confidence Harrison can be a very positive member of Australian society. I am willing to provide all the support I can to overcome his mental and drug issues. His experience in custody has been absolutely awful. I am confident that this experience will prevent further offending by Harrison.”[30]
[30] Exhibit F
In his oral evidence, Mr Ian Thompson said that he would be able to spend approximately 90% of his time with his son if he were to return to Australia. He had a car that his son could use. His unit was located away from his peer groups that had got him into trouble in the past. He could take him to his Community Corrections Order obligations and his psychiatric and medical appointments. Trams go past the door. In Mr Ian Thompson’s view, his son is better in his care than that of his former wife. His son pushes back but, when he holds firm, his son accepts it. Before he was taken into custody in 2015, his son lived with him and his partner in his unit for a time. Mr Ian Thompson felt that his son was doing very well with him. His son was attending classes and had obtained his driver’s licence. One day in 2014, his partner had an issue and he had trouble in getting his son out of bed. His partner “got stuck into” his son. That pushed his son back to his mother and, in the words of Mr Ian Thompson, “things deteriorated from there”.
When he found out that his son had used Ice in New Zealand, Mr Ian Thompson said, he was very worried about where he was staying. It was transitory housing and he found his son spending a lot of time on his own. He had declined psychiatric services that had been offered to him. The first thing that he did was to get his son to his mother’s house. His mother is very structured and she makes sure that he takes his medication. His care has been transferred from a CAT team to an early intervention team. Mr Ian Thompson’s mother did not want her grandson to stay with her. She is mentally alert but frail physically.
Mr Ian Thompson said that his son needs a solid family base in which to function in the short term and to get him to appointments. A big issue centres on how his anxiety is to be managed. His son needs to regain his confidence and to become reoriented into normal society. That may involve his getting part time work and regaining his confidence.
DIRECTION No. 65
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[31] Those directions must not be inconsistent with the Act or the Regulations made under it.[32] The person or body to whom the directions are given must comply with them.[33]
[31] Migration Act; s 499(1)
[32] Migration Act; s 499(2)
[33] Migration Act; s 499(2A)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 65” and applies to the decision made in relation to a visa of the sort held by Mr Thompson.
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[34]
[34] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(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 vulnerable members of the community such as minors, 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.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in Mr Thompson’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[35] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[35] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[36] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[37]
[36] Direction No. 65 at [8(2)]
[37] Direction No. 65 at [8(4)] and [8(5)]
CONSIDERATION
Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.”[38]
[38] Direction No. 65 at [13.1(1)]
That statement makes clear that the persons’ conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:
“… should also 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.”
A. The nature and seriousness of Mr Thompson’s conduct
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeat offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)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);
h)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;”.[39]
[39] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.”
A.1 Consideration
As with many cases, the date on which a person has been convicted of offences is clear but the date on which those offences were committed is not so easy to glean. The date on which they were committed is just as important as the date of the convictions for it can be revealing as to how a person behaves and whether their being convicted has, or has not, had any modifying effect on their behaviour. In this case, for example, Mr Thompson’s two convictions on 21 August 2015 for Armed Robbery related to offences committed on 6 and 7 January 2014. That meant that they were committed before the events involving his mother, stepfather and brother and not after as the date of conviction would suggest. Where the pattern lies in the commission of the other offences and of Mr Thompson’s convictions is not possible to know from the evidence.
What is clear is that Mr Thompson came to police attention when he was, at the latest, 16 years of age for that was the age at which he was convicted. Among the suite of offences for which he was convicted were Recklessly Causing Injury and Intentionally Causing Damage to Property. That was on 30 November 2010 and Mr Thompson was not convicted of any of the four offences with which he had been charged. Three months later, on 28 February 2011, he was before the Melbourne Children’s Court again and charges of Recklessly Cause Serious Injury as well as eight other offences were found proved but convictions were not recorded. That meant that he had also been in breach of the 12 month probation that had been imposed at his first appearance at the Melbourne Children’s Court. Six months later, on 31 August 2011, he was convicted of, among other offences, two counts of Recklessly Cause Injury and two charges of Reckless Conduct Endanger Serious Injury. At the same time, convictions were recorded for those offences that had come before the Melbourne Children’s Court on 28 February 2011 and he was sentenced to terms of detention in a youth justice centre.
This is a pattern of violence against the person as well as against property for Mr Thompson’s other convictions on that day included Intentionally Damage Property. It is a pattern that is continued six or so months later when he is convicted on 8 March 2012 of Intentionally Damage Property. In August 2012, he committed a number of offences, for which he was, without conviction, placed on probation on 16 May 2014 for a period of nine months on 16 May 2014. Those offences included Drive in a Manner Dangerous. In the meantime, he had been found guilty, but not convicted, of Unlawful Assault on 6 June 2013 and 28 January 2014.
Less than a month after his court appearance on 16 May 2014 when he had been placed on probation for nine months but no convictions had been entered, Mr Thompson committed two Armed Robberies of which he was convicted on 21 August 2015. The list of convictions or of offences found proven but of which he was not convicted include previous offences of Armed Robbery.
The pattern that is established by these offences is one of causing injury to persons, damage to property and disregard for other people’s property. The fact that he was initially treated leniently by the Melbourne Children’s Court did not appear to act as any form of deterrent to him and nor did the imposition of a youth attendance order. His pattern of offending continued and concluded with his assaulting his mother and stepfather in February 2015. Mr Thompson hurt both of them. I have set out Mr Johnson’s injuries above. Mr Thompson’s mother downplayed the events of that night but I accept the evidence of the neighbour of Mr Johnson and Mrs Thompson and of the truck driver. Both witnessed Mr Thompson’s hitting his mother. As the neighbour described it, he was “repeatedly punching her and kicking her over and over”. As the truck driver said, he was punching her “in the face full on”. Mr Thompson’s actions on that night in February 2015 show his preparedness to engage in violent behaviour as well as, as in the case of the last offences for which he was convicted, threaten it.
Prison officers suspected that Mr Thompson had been assaulted in prison but he insisted that he had fallen down the stairs. His behaviour was inconsistent in prison but there are no incidents recorded in the material suggesting that he was the instigator of any violence. He said that he heard voices and then denied that but the voices of the Angels seemed to become more entrenched during his time in detention. The Angels were very much present when Mr Thompson struck a Serco officer who was accompanying him to the dentist.
Mr Thompson’s behaviour has been reviewed and assessed by Dr Crewdson. Both he and Mr Thompson’s parents have scrutinised and analysed Mr Thompson’s behaviour. Dr Crewdson saw Mr Thompson as suffering from a deteriorating psychological state in which he was developing a paranoid delusional condition of a schizophrenic nature. His condition was a very significant factor in the offences he committed against his mother and stepfather. An important part of his developing that condition, he considered, was the post-traumatic effect of being shot by police.
That may be so but what it does not take account of is the fact that Mr Thompson was shot in the arm in August 2012 and he had already developed a pattern of offending over the previous two years. On his own evidence, Mr Thompson had already started smoking cannabis in 2009. That was some three years before he was shot in the arm. By then he was, again on his own evidence, using drugs such as heroin and Ice. He already had established a pattern, even if a truncated pattern, of committing offences without regard to the safety of persons or property. To attribute Mr Thompson’s condition to the consequences of being shot in the arm is to ignore his preceding behaviour.
The same is true of the blame that Mr Ian Thompson and Mrs Thompson lay at the door of the prison and detention authorities for their son’s deteriorating condition. The T documents contain records of his incarceration. They show that, on 1 September 2015, he was separated from other prisoners due to officers’ being concerned about his state of mind due to incidents involving him.[40] A similar decision had been made on 9 October 2015 following his raising concerns regarding his safety and he asked to see a Psychiatric Nurse.[41] Serco officers referred Mr Thompson to the High Dependence Unit at the Liverpool Hospital in New South Wales. Whether the actions of the prison officers or Serco was adequate or appropriate is not an issue that I need to address or presume to do so. What is of consequence in this case is that Mr Thompson’s pattern of behaviour had been well-entrenched before he reached the prison system in 2015. It was a pattern that involved violence and disregard of personal property, that started from a relatively young age and that continued despite his being treated leniently in the early days. Apart from hitting a Serco officer on one occasion, it is not a pattern that has been repeated in the prison system or in detention but they are controlled environments without, in Mr Thompson’s case, access to illicit drugs.
B.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[40] T documents; T2 at 174
[41] T documents; T2 at 169
Paragraph 13.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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.
(2)In considering the risk 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; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).”
B.1.Consideration
I accept the evidence of Dr Crewdson and of Mr Ian Thompson and Mrs Thompson as well as that of Mr Thompson himself that he was affected by drugs, and particularly by Ice, when he committed the crimes of which he was convicted. He had started smoking cannabis when he was 15 years of age and, since then, he had used Ice and heroin. In giving his evidence, Mr Thompson said that he no longer used Ice and had not used illicit drugs since he went to gaol in 2015. Later, he admitted that this was not true. He had used Ice shortly after arriving in New Zealand on 27 January 2017.
While Mr Thompson is to be commended for his honesty in revealing his more recent drug use, the fact that he has reverted to drugs after a lengthy period of abstinence, is an indicator that he has not left them behind him. Given the close association between his taking drugs and his committing crimes in the past, his taking them again, even if only on one occasion, raises the risk of his returning to his past offending behaviour. Should he do that, and given the pattern of his past offending behaviour, the risk to person and property of members of the Australian community is increased. While it might be said that Mr Thompson has erred only once since his incarceration in 2015, it can also be said that periods of abstinence from drugs and consequent periods of better behaviour are followed by periods of drug taking and offending behaviour.
Dr Crewdson’s focus is upon what is good for Mr Thompson’s recovery and future. That is entirely appropriate in a role as a clinical psychologist. His reports show Mr Thompson’s progression. In August 2012, Dr Crewdson was noting that Mr Thompson had experienced a really big wake-up call after being shot in the arm by a policeman. Mr Thompson stopped and realised that he had regarded the choices he had made to that point as being part of a game. In his evidence, Mr Thompson said that his actions involving the policeman had been a low point in his life. His recognition of this boded well for the future in 2012 when he first acknowledged his behaviour to Dr Crewdson but it has far lesser significance in 2017 when he has continued in the intervening three years to 2015 to act in a way that endangers not only members of the Australian community but also members of his own family and returns to drug taking, even if only once, in 2017.
Mr Thompson’s behaviour in prison raised concerns about his mental health as has his behaviour in detention. His behaviour in detention has been such that there were concerns that it was not consistent with his suffering from mental illness. On the evidence that I have, I accept that Mr Thompson is suffering from mental illness but I also find that he is adopting a more passive, than active, role in his treatment. That is to say, he is compliant with the treatment and states that he wants to change and not to commit further offences but as he presented at the hearing, he is not attempting to take his own steps to travel on any path let alone a positive path.
For example, on the basis of his own evidence, I find that Mr Thompson cannot help his paternal 85 year old grandmother very much because of his mental health issues. It is his father who says that he will make sure that, if his son is permitted to return to Australia, he will take him to his Community Corrections Order obligations and his psychiatric and medical appointments. Mr Ian Thompson felt that his son was doing very well with him. His son was attending classes and had obtained his driver’s licence until some point in 2014 when his son returned to live with his mother. While I accept that, Mr Ian Thompson’s experience was little different from that of his former wife and her husband. Their son’s pattern of resuming his studies and avoiding drugs and then avoiding studies and resuming drugs was repeated for both of them.
Mr and Mrs Thompson’s wish to help their son is understandable and what any parent would want to do but he also has to want to help himself before he can begin to regain his health and change his ways. There is very little in Mr Thompson’s own evidence that suggests that he is taking proactive steps to help himself. Mr Thompson himself thought that his having to abide by the Community Corrections Order would help him to get his life back on track and get him into a good routine. That may well be true and would be a good thing if it did. Taken on its own, I would not see compliance with a Community Corrections Order as a passive response to his situation but I do when Mr Thompson told me that it was his hope that the services would find him work. He is showing little willingness to address his own situation. He was aware that he would need to find treatment for drug addiction and for alcohol but, again, he has been inconsistent in his steps to take advantage of treatment for that or for his mental health issues.
These things may be a product of the state of Mr Thompson’s mental health. They may be matters that can ultimately be addressed with proper treatment. There is no indication of how much time would need to pass before any positive outcome of treatment could be expected. Direction 65 notes that decisions should not be delayed in order for the rehabilitative courses to be undertaken. Given Mr Thompson’s history including his taking Ice in January 2017 and that his history of his offending is associated with his drug-taking and broken by periods of attempting to return to his education and a family life, I am not satisfied that the risk of his re-offending has been reduced to an extent where it could be said that the level of risk of Mr Thompson’s re-offending is at a level acceptable to the Australian community or that, if he were to reoffend, the risk of his endangering the health and safety of the Australian community is at a level that is sufficiently low to be regarded as acceptable.
C. Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[42] In considering the best interests of the child, paragraph 13.2(4) provides:
[42] Direction No. 65 at [13.2(2)]
“In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”
C.1 Consideration
Mr Thompson does not have any children but he does have a brother who is still a minor. On the basis of the evidence of Mrs Thompson, I find that her two sons have not had any contact since the night of 4 February 2015. Whether that is Mr Thompson’s brother’s wish in whole or in part, I am not able to determine. Their mother said that she did not want her younger son to see prisons or a detention centre and that may equally be a reason. Mr Thompson’s younger brother was not called to give evidence. On the basis of the evidence of Mr Thompson, I find that he has sent only one message to his brother. That was sent through his mother and reminded him that he needed to study and to avoid following in his footsteps.
On the basis of the evidence that I do have, I find that the relationship between the brothers is not close. If Mr Thompson were permitted to return to Australia and he continued with his previous offending behaviour, there would be a risk that his younger brother would be exposed to events similar to those of 4 February 2015. Beyond that, I am unable to make any findings about the effect of Mr Thompson’s being in Australia or in New Zealand on his younger brother.
D. Expectations of the Australian community
Paragraph 13.3(1) states:
“The Australian community expects non-citizens to obey Australia’s 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 such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
D.1 How are those expectations determined?
Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. A consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:
“… The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in any sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.[43]
[43] The reasons for this view are set out in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72]
D.2 Consideration
Paragraph 13.3(1) of the Direction states at the outset that the Australian community expects non-citizens to obey Australia’s laws while in Australia. It makes no reference to the different challenges which may face non-citizens and which may lead them to fail to meet that expectation. That is not to say that those challenges will not be relevant in considering what the Australian community would expect in an individual case but it does set a baseline.
In this case, Mr Thompson was given a chance in November 2010 when he was placed on 12 months’ probation for quite serious offences and not convicted. Although convicted for his next set of offences, he was released on a youth attendance order for nine months but did not take advantage of it. As he said to Dr Crewdson of his offending: “It all had (the quality of) doing something for the thrills. A sort of game.” It is not a game for the Australian community, though. While Mr Thompson was doing what he was doing for thrills, members of the community, including members of his own family, were injured or faced the threat of injury from his actions.
Mr Thompson expressed remorse to Dr Crewdson at various times but repeated his behaviour. As I have said, his behaviour and his mental health and his drug taking may be inextricably linked. The Australian community has some patience with people who find themselves in that position but it expects them to take some steps to help themselves and to take responsibility. Mr Thompson has had opportunities to take such steps but he has been unable to take them or, if he has taken them, unable to maintain a position of recovery.
Other considerations
The five other considerations are summarised in paragraph 14(1):
“a) International non-refoulement obligations;
b)Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.”
A. Non-refoulement obligation
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that Mr Thompson is at risk of harm of the sort that raises Australia’s non‑refoulement obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol i.e. the Refugees Convention. Therefore, I find that this consideration does not arise on the evidence in this case.
B. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 65 states:
“… Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non‑citizen has 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).”
B.1 Consideration
Mr Thompson came to Australia when he was almost five years of age. When he left in January 2017, he was 23 years of age. He had effectively spent all of his formative years in Australia and was 15 or 16 years of age when he first came before the courts. His mother, father, brother, stepfather and step siblings live in Australia but he does not have any contact with his friends since leaving for New Zealand. Mr Thompson’s brother did not give evidence and, on the evidence of their mother, I find that he and his brother had not had contact with each other since February 2015. His step siblings did not give evidence either but, given their location in Sydney and the absence of any evidence of a relationship with them, I find that any relationship Mr Thompson has with them is not close.
Although he has a grandmother and an aunt and uncle and cousins living in New Zealand, he has no other family in that country. He has not developed close bonds with them over the years and has no friends there. While he lives with his paternal grandmother that would not seem to be a long term arrangement given her age and her physical frailty.
The effect of non-revocation of the cancellation of Mr Thompson’s visa would have an immediate impact upon his mother and father and, conceivably, the relationship of Mrs Thompson and her husband. It would place his parents in the position of having to decide whether one or both of them should return to New Zealand to live in order to be with their son or whether they wish to make other arrangements that do not require them to make that change. If they were to return to New Zealand, Mrs Thompson would have to find new employment and Mr Ian Thompson would have to work out ways in which to manage his business, which has an Australian focus and which relies on the larger market that is available in Australia. Decisions would have to be made as to whether their younger son remains in Australia to complete his schooling or does so in New Zealand, where he has never lived. Mr Johnson would have to decide what he should do. Whether he lives in Melbourne or in New Zealand, his children will still be in Sydney. It might be argued that the impact of a move on his relationship with them might not be as great as might otherwise be the case for they would still be separated by distance. There would, however, be an impact on his employment and particularly so as he had only just regained employment after a period of illness. Should Mrs Thompson decide to return to New Zealand, her mother would also have to decide whether to remain in Australia without her daughter’s support, on which she relies. If she were to remain in Australia, she would be close to the grave of her son in Melbourne and to her other daughter who lives in Australia[44] but, if she were to return to New Zealand, she would be closer to her daughter.
[44] T documents; T47 at 600
C. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 65 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, 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.”
C.1 Consideration
The cancellation of Mr Thompson’s visa and the non-revocation of that cancellation would not have any effect on Australian business interests.
D. Impact on victims
At paragraph 14.4(1), Direction No. 65 states:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
D.1 Consideration
As she was the victim of some of his crimes, the evidence of Mrs Thompson could be considered in this section of my reasons. I do not intend to do so for it is more properly considered under the heading of “Strength, nature and duration of ties” considered above.
I do not have any evidence regarding the effect of a decision not to revoke the cancellation of Mr Thompson’s visa on the victims of his crime. Judge Allen’s sentencing remarks referred to the impact of Mr Thompson’s actions on the victims of his crimes but not on the possibility that he remained, or did not remain in Australia. That was not a relevant issue for him to consider.
Therefore, I can consider the issue in only the most general way. The shop attendant at the Brumby’s store was “extremely scared” when one of Mr Thompson’s co-offenders approached her with a machete. The neighbour who witnessed some of the events of 4 February 2015 described Mrs Thompson as looking “scared, petrified even” when he son was punching and kicking her. The truck driver described Mr Thompson’s punching his mother repeatedly in the face.
In the previous paragraph, I have referred to the evidence describing the emotions shown or felt by the victims of Mr Thompson’s crimes at the time he was committing them. How revocation of the cancellation of Mr Thompson’s visa would affect victims other than Mrs Thompson is a different issue and difficult, if not impossible, to gauge from the emotions they expressed or felt at the time of the offending behaviour. The impact of revocation of that cancellation and any consequent return to his offending behaviour by Mr Thompson is less difficult to assess. It would lead to the same emotions of fear as expressed by the shop attendant and as observed by Mrs Thompson’s neighbour and the truck driver. If his offending behaviour were to follow its former pattern, it would likely lead to their being injured.
E. Extent of impediments if removed from Australia/not permitted to return
Direction No. 65 also states in paragraph 14.5(1) that:
“The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.”
E.1 Consideration
I have set out the lack of family support that Mr Thompson has in New Zealand under the current arrangements. His father arranged for medical care for him and he is receiving income maintenance support of some sort at the moment. Although the income support payment would seem to be insufficient to support him, it may be that the amount of the payment is dependent on his living arrangements. I have no evidence to take that matter further and simply note that income maintenance support is available to him as is medical and mental health care. Although Mr Thompson has spent little time in New Zealand, he would face neither a language nor a cultural barrier were he to live there.
Conclusion
Mr Ian Thompson and Mrs Thompson came to Australia with their young son thinking to make Australia home. They have settled here and made their lives here and their younger son was born in Australia. Given that their elder son was very young when he came, both their sons have known only Australia as their home. Although they did not stay together, both Mr Ian Thompson and Mrs Thompson have continued with their lives in Australia. Mrs Thompson’s husband has children in Australia and he has his roots in Australia as does Mrs Thompson’s mother who has moved from New Zealand to live in Australia.
If I were to revoke the cancellation of Mr Thompson’s visa, all of them would be available to him to assist him in the recovery of his mental health and in dealing with his use of drugs. They could all do that while continuing with the lives that they have made for themselves. It would not be an easy path but they would be in a position where they had income from employment or from business. Mr Thompson would be subject to a Community Corrections Order for the first four years and required to attend psychological counselling with Mr Krutzen and to comply with the other special conditions set by Judge Allen. Judge Allen would be supervising his progress and, if he did not meet them, Mr Thompson would be liable to be re-sentenced for the two offences of Armed Robbery and for breaching the Community Corrections Order. Dr Crewdson would be available to continue with Mr Thompson’s treatment and his parents would be available to provide a supportive environment.
That would be the best outcome for Mr Thompson and his family and is a relevant consideration. It is, however, outweighed by considerations relating to the protection of the Australian community. Mr Thompson has a history of crimes involving harm to members of the Australian community. Despite his relatively young age, it is a history that extends over a five year period. He acknowledged in his letter to Judge Allen that he had not taken advantage of the opportunities offered to him in the past. Although undated, that letter would have been written some time shortly before 21 August 2015 when Judge Allen sentenced him on 2 counts of Armed Robbery. Judge Allen’s sentence included a nine month period of imprisonment but was also structured so that Mr Thompson had to undergo psychological counselling, drug testing and family counselling with his parents. It was a sentence that was much more lenient than the five, with a minimum of three, year sentence that he would have imposed had Mr Thompson not pleaded guilty. It was a sentence designed to assist him to address his mental health and drug issues.
It could be said that Mr Thompson has not had the advantage of following the course set out by Judge Allen and so has not had the opportunity to rehabilitate himself. He was taken from prison to detention rather than being released on a four year Community Corrections Order. Although his parents and Dr Crewdson are critical of the way his mental health issues were dealt with in prison and in detention, Mr Thompson had been given the opportunity to rehabilitate by means of earlier orders for probation and a youth attendance order. Dr Crewdson had been involved in his care since 2012. It may be that, as Judge Allen said, Mr Thompson will eventually get to a place where he is able to remain drug free and not offending.
Given his use of Ice on his return to New Zealand, I find that he is yet to reach that place. That is so even though, on his evidence, he used only once since his return. That relapse is consistent with his past history and pattern of offending and drug use. When taken with the serious nature of his past offending, his most recent relapse, leads me to conclude that I must affirm the decision refusing to revoke the cancellation of Mr Thompson’s visa. Given the close ties between his drug-taking and his offending, his return to drugs even if on only one occasion on his return to New Zealand indicates that he has not addressed his issues with drugs. His return to drugs increases the risk of his committing offences which endanger the safety of the community for that has been a strong element in the offences he has been found to have committed in the past. The risk that he will do so is significant as is the risk that he will harm members of the Australian community if he re-offends.
DECISION
For the reasons I have given, I affirm the decision of a delegate of the Minister dated 25 October 2016 not to revoke the decision made on 29 April 2016 to cancel Mr Thompson’s Class TY Subclass 444 Special Category (Temporary) visa.
| I certify that the preceding one- hundred-and-twenty-four [124] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
.......[sgd]...........................................................
Associate
Dated: 10 August 2017
| Date of hearing: | 27 March 2017 |
| Counsel for the Applicant: Solicitor for the Applicant: | Mr Pierre Baume Mr James Hammond |
| Solicitor for the Respondent: | Mr Ken Powell Clayton Utz |
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Standing
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