TVCA and Minister for Immigration and Citizenship

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/0760

General Administrative Division )
Re: TVCA
Applicant

And: Minister for Immigration and Citizenship
Respondent
DIRECTION
TRIBUNAL:         Deputy President S E Frost
DATE:               9 April 2014
PLACE:             Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the reasons for the decision in this application as follows:

Replace the text at footnote 37 with “See [73] – [88] of these reasons.”

........................[SGD]...........................................
Deputy President S E Frost
[2013] AATA 309

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/0760

Re

TVCA

APPLICANT

And

Minister for Immigration and Citizenship

RESPONDENT

Decision

Tribunal
Deputy President S E Frost

Date 15 May 2013

Place Sydney
Decision set aside; substitute a decision that the Applicant’s visa is not cancelled.
......................[sgd]..................................................
Deputy President S E Frost
Catchwords
IMMIGRATION AND CITIZENSHIP – visa cancellation – failure to pass character test – substantial criminal record – discretion to cancel applicant's visa – Ministerial Direction No 55 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated –impact of the cancellation – decision under review set aside and substituted with a decision that the applicant's visa is not cancelled.
Legislation
Migration Act 1958: ss 34(2), 499(1), 499(2), 499(2A), 501, 501(2), 501(6)(a), 501(7), 501(7)(c)
Cases
-
Secondary Materials
Ministerial Direction no. 55
REASONS FOR DECISION
Deputy President S E Frost

The Applicant has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record as defined in s 501(7)(c) of the Migration Act 1958 (the Act).
Background
The Applicant was born in Tonga in 1971. He is now 41 years of age.
When he was seven years old, the Applicant and the rest of his family came to Australia to live. He has not left Australia since then.
The Applicant is the holder of an Absorbed Persons Visa as defined in s 34(2) of the Act.
The Applicant seems to have had a generally good childhood and family life. He experienced some initial difficulties at school because of the language barrier, but his English gradually improved and he enjoyed school.
He left school at the age of 16. He started a bricklaying apprenticeship, but he was unable to continue with the apprenticeship when he moved with his parents to Victoria in the late 1980s.
General criminal history
The Applicant has a very extensive criminal record, including convictions while he was still a minor for assault, malicious wounding and offences involving motor vehicles.
In August 1992 he appeared, as an adult, in the Local Court for assault occasioning actual bodily harm (for which he was fined), and in September 1994 he was again before the Local Court where he was convicted of assault occasioning actual bodily harm and received periodic detention for 12 months. Further convictions for a number of other assault type offences in 1997 saw him receive several short prison sentences, and on two occasions in March 1997 and August 1998, the cancellation of periodic detention orders. He was convicted in September 1998 on two firearms offences, for which he received prison terms of up to two months, and he received a two year good behaviour bond for common assault.
The Applicant was convicted in the Local Court in July 2000 of a number of matters and subsequently appealed against the sentences imposed for some of them, with the following results: assault occasioning actual bodily harm (12 months imprisonment), resist police officer in the execution of duty (three months), possess/use a prohibited weapon without permit (eight months), common assault (six months), escape from lawful custody (four months), assault officer in the execution of duty (two months) and steal from the person (eight months). In October 2001 he successfully appealed the sentence resulting from a conviction in November 2000 for assault occasioning actual bodily harm, and had his sentence reduced to two years, five months and ten days imprisonment. In December 2000 he was convicted of assault occasioning actual bodily harm and received 18 months imprisonment, and in February 2002 he was sentenced to eight months imprisonment for assault occasioning actual bodily harm.
Offences against persons of authority
The Applicant has a total of five convictions for assault police/person assisting police. He also has three convictions for assault officer in the execution of duty, and two for resist police/person assisting police. In October 2002 he was convicted of a number of charges relating to the assault of prison officers at Goulburn Correctional Centre: assault occasioning actual bodily harm (three years and three months), assault occasioning actual bodily harm (three years), assault (two years) and maliciously destroy or damage property (six months).
District Court Judge Freeman described the attack on the prison officers as follows:[1]
…[T]he prisoner having previously equipped himself with a length of metal pipe, namely the shower rail which he had torn from the wall and broken into a manageable piece, confronted Mr Lee, the first officer who opened the door. He says himself he punched Mr Lee. There was some use of the metal rod. Prison Officer Shaw came in to assist. He was knocked unconscious while attempting to tackle the prisoner. He sustained an injury to both arms, a fracture of his right wrist, severe bruising of his left arm and various other injuries. Officer Honeysett, also coming in to assist, was threatened by the prisoner, but not actually stuck, but finally engaged in a tug of war to retrieve the metal rod from the prisoner’s grasp. The prisoner was then restrained.
The assaults on the three officers are themselves serious. The effects physically and psychologically upon, at least Mr Shaw, were themselves serious. He gave evidence that he is still undergoing counselling and he said he suffered a fracture of his wrist. Mr Lee described himself as being unable to return to full duties for seven weeks or so. Of course the severity of injury is not necessarily determinative of the severity of sentence, but it is certainly a factor to be taken into account. …
[1] G documents, Exhibit R1, page 120 - 121
In sentencing the Applicant, Judge Freeman said:
…
During the course of the trial and I assume it is still before me there was tendered a report from Professor Greenberg, as well as the report of Dr Andronkashvi, which indicates that the prisoner does have some psychological difficulties. He appears to be suffering from depression. Whilst he was fit to plead and continued to be fit to conduct his case, it was obvious that there is a rigidity of thought and without expressing any unqualified lay-diagnosis, the appearance at least of paranoia, to which Professor Greenberg referred. …[2]
…
I should also say this, that [the Applicant], with his perceptions of what [is] going on around him, probably represents a difficult prisoner to manage, but he is nonetheless entitled, as he claims himself, to be treated in accordance with the law. … For his part, he should understand that sometimes, regardless of how fervently he believes something to be the case, he is at times wrong and his perceptions as to the way in which he is being treated, are not necessarily accurate.[3]
…
[2] G documents, Exhibit R1, page 122
[3] G documents, Exhibit R1, page 124
By this time, the Applicant had a long history of violent offending. He had been sentenced for a previous similar offence in December 2000 involving the assault of two prison officers, as a result of which he was transferred to Goulburn, where the offences against the three officers took place.
Release and subsequent offending
The Applicant was released from prison in February 2006 and went to live with family members in Mildura. Unfortunately it was not long before he offended again. In December of that year, in a completely unprovoked attack, the Applicant followed a security guard into a men’s toilet at Campbelltown Mall. He attacked the security guard from behind, striking him to the back of the head, causing the victim to hit his head on the wall in front of him. When the victim turned around, the Applicant struck him to the lower left side of the chest, and in the ensuing struggle stabbed the victim four times, twice to the chest, once in the left leg and once in the right arm. In the District Court, Judge Ashford commented as follows:[4]
The injury to the victim was substantial. … The records of the Liverpool Hospital indicate there to be a laceration in the anterior chest wall with x-rays disclosing a left haemothorax from which blood was aspirated. The victim required further treatment. It is noted he was stabbed four times, two in the chest area, one in the lower limb, and one in the right arm. He subsequently required treatment by way of thoracotomy, repair of the left ventricle and pericardium, repair of a laceration to the left hemidiaphragm and suturing of wounds to the left lower lung and the right upper lung.
Medical reporting from Dr S Raj Sundaraj of 30 January 2007 notes that at that time the victim continued to be troubled with very severe pain in the left anterolateral chest area with some left medial leg numbness and weakness. In his view the victim suffered neuropathic pain to the left chest, pleuritic pain, left leg saphenous nerve neuropathic pain and some clinical depression. He continued to receive treatment, including psychiatric treatment and support in respect of pain management.
Dr F Noore initially noted the victim to suffer post traumatic stress disorder and major depression which required treatment and medication. By September 2007 it was noted there had been significant improvement in relation to the depressive illness but the symptoms of PTSD continued to some extent. It was felt he required continuing medication.
Reports of a psychologist, Mr Parish, were also provided. They noted there had been some improvement in the victim’s condition as at February 2008, although the victim continued to experience some significant psychological difficulties, which required continuing treatment. A victim’s impact statement is before me. As I have said, it seems there were serious mental and psychological injuries to the victim, as well as the physical injuries. Because of his injuries the victim has been unable to work for a lengthy period of time and apparently suffers from post traumatic stress disorder to the extent he is unable to place himself in some situations because of his fear and lack of trust. I have no doubt the effects upon him have been severe. …
[4] G documents, Exhibit R1, pages 113 -114
Her Honour’s sentencing comments included the following:[5]
[5] G documents, Exhibit R1, pages 115-118
…
[In regard to a submission by the Applicant’s counsel that the Applicant had “good prospects of rehabilitation”] there is a medical report under the hand of Dr David Greenberg, dated 4 September 2008 relating to his assessment of the offender by way of psychiatric assessment. He had apparently previously seen him in 2002 on two occasions, and on 29 July 2004. He obtained information from the offender’s medical records at Justice Health and had the benefit of his earlier observations of the offender. He recorded the offender to be Hepatitis C positive with no physical symptoms at this time. He noted some history of alcohol abuse, but a denial of any need for treatment for that abuse. A long history of substance abuse was recorded from early adolescent times but he told Dr Greenberg he had not abused any substances in the past year and denied he was in any need for treatment for drug use.
It seems to me that his prospects for rehabilitation are not good and depend to a large extent upon his being compliant with medication and attending for treatment in respect of mental health problems to which I shall refer.
…
Dr Greenberg reached a diagnosis of psychotic disorder with a query of schizophrenia and a query of drug induced psychosis (in remission) and also of alcohol and substance abuse. He thought him to have a personality disorder with anti-social and paranoid traits. In his opinion the offender suffers from a psychotic mental illness although the exact diagnosis was not clear.
He recorded that following the offender’s release from custody in April 2006 he was referred to the Mildura Community Health Service for further follow-up care but was not compliant with psychiatric medication for two or three months prior to his current criminal offence. At the time of assessment he noted the offender to be treated with medication and to display no evidence of acute psychotic symptoms such as hallucinations or delusions, but noted him to continue to have some paranoid ideation and tended to have limited insight into his mental illness and the need for psychiatric treatment. He thought it unclear as to the role his mental illness played in the offence but thought it possible that mental illness played some part in the offence on the basis that he had discontinued his anti-psychotic medication two or three months prior to the offence. He thought him at high risk for further acts of violence.
…
In relation to mental health issues I note he was considered fit to plead following receipt of psychiatric reports of Drs Westmore and Allnutt, and thus a fitness hearing was not considered necessary. It seems that since he has again been on prescribed medication his behaviour has modified, although it still appears he lacks insight into his mental health issues. On the last occasion on release from prison he ceased his medication.
It seems to me that in the light of his psychiatric problems and his need for continuing medication and assessment that I should find special circumstances as it appears to me that he will require a long period of supervision and rehabilitation and thus I am satisfied I should vary the statutory ratio in accordance with that finding of special circumstances.
…
The offender is presently thirty-six years of age. He did not give any evidence before me and I am reliant upon the medical material tendered on his behalf in relation to any psychiatric condition. As I have said, it seems that if he continues to take his medication his mental condition stabilises, although he clearly lacks some insight into the mental health issues and on that basis it is difficult to assess his understanding of the seriousness of the offence which he has committed. …
…
The Applicant was convicted of maliciously inflicting grievous bodily harm with intent to do so. He was sentenced to imprisonment for 10 years with a non-parole period of six years. Upon his release at the end of the non-parole period he was immediately taken to the Villawood Immigration Detention Centre as a consequence of the Minister’s cancellation of his visa.
Behaviour in prison, 2006 to 2013
During his most recent period of incarceration, from 2006 until his release in April 2013, the Applicant undertook a number of courses – the Violent Offenders Therapeutic Program (VOTP), the Real Understanding of Self-Help (RUSH) program and a course in Anger Management. There has been a significant improvement in his behaviour in custody, in that, while his earlier behaviour was marked by many instances of violence, he has not engaged in any institutional violence at all since 2006.
Illness
The Applicant has been diagnosed with paranoid schizophrenia, having manifested symptoms of mental illness since at least 2001. Dr Jonathon Adams, a forensic psychiatrist who prepared a report for these proceedings, considers that there are “reasonable grounds to conclude that [the Applicant’s] mental illness dates back some years … at least to early childhood and perhaps even earlier”.[6] I will deal with Dr Adams’ evidence in more detail later in these reasons.
[6] Transcript (extract), 30 April 2013, P-4, line 44 – P-5, line 7
The Applicant’s evidence
The Applicant gave a comprehensive and articulate outline of his life, his family and other relationships, and his criminal history.
He explained that when he was young he heard voices, which made him wary and untrusting of others. At around the age of 15 he started experimenting with drugs. He last used drugs in 2006, just after the incident he was most recently incarcerated for.
He now views that incident from an entirely different perspective from the only one that was available to him at the time. He acknowledges that his thoughts were “very muddled, very erratic”. He said that his thoughts and behaviour at the time were not those of a normal person. He explained that he could not, at the time, distinguish between “the voices” and his actual thoughts. He said that at the time he did not have a clear view of anything.
He now accepts the diagnosis of schizophrenia. He said, “I wish I had been diagnosed much earlier. I wish I had been treated when I was much younger.” He realises that he is now stable on his medication, and noted that his life might have “turned out different” if he had been diagnosed earlier.
In relation to the offence in 2006, he said, and I accept, that he is “terribly sorry” for what he did to his victim.
He explained that one of the exercises he undertook in the VOTP was to write a letter to his victim, and also a letter from the victim to himself, as a way of appreciating different perspectives. The program instructors noted that the Applicant had been “quite harsh on himself” in that exercise, but he said, “I well deserve that harshness.” He realises that he cannot take back what he did to his victim. He explained to me that the victim would have experienced shock, horror and fear, and that the Applicant’s attack on him almost cost him his life. He said, “I had no right to do that. The physical and mental pain I caused him wasn't good. I’m remorseful. I regret letting something like that happen.”
He spoke about the courses that he had undertaken in prison. He explained that they have helped him to deal better with the situations that he confronts, to have empathy, to understand his feelings, and to help him “function as a better human being”. He said he can “bring it all together” as a result of having undertaken the VOTP. He said, “It’s been a big turnaround for me. I was unaware of my illness.” He also acknowledged that he had previously had violent, anti-authority attitudes.
He said he had had a lot of time to himself in prison, to reflect. He described himself as having become the person he didn’t want to be: a destructive person, with no compassion for others, who found it hard to understand his own feelings. Now, he said, he tries to be the person he wants to be: “the person I truly am”. He said that he wants to work towards being “a better me”, and to get back some of the innocence he lost as a young child.
He acknowledges that he used to be very angry and bitter but that now he has stabilised on his medication. He claims to be in control of his thoughts and himself. He no longer feels anger or resentment towards other people.
He also realises that until recently he had little or no insight into his problems. He credits his current medication, and specifically his current dosage, with his significant improvement in this area. He said that he can now think more clearly. It is “the best thing that happened to me”.
He was asked how he thought he would be if he went off his medication, and said, “I don’t think it would be good for me, that’s all I know.”

He was also asked about his current attitude towards drugs. He answered:
It’s not for me any more. It’s never brought anything good into my life. I don't see any benefit. I want the good things in my life. I used to take drugs to numb me from life, now I want to take part in life. I want to be part of something bigger than me. I want to get a job, smile and laugh, look after the people who are important to me.
When asked why he had lost contact with his family in the past, he said that he had thought that he was a burden, that he had always “stuffed up”, and that they no longer loved or supported him. However, more recently he has grown very close to his younger brother, who, he feels, can now talk to him and confide in him. The Applicant said that he wants his brother’s young sons to call him “uncle”. The contact he has had with his young nephews “means a lot” to him. He wants to be able to advise them, to help them become good people.
Mr Kikkert, representing the Minister, asked the Applicant to explain the comment in the Justice Health psychiatric report dated 4 September 2008 that:[7]
He had paranoid ideas, but there was no evidence of any overt delusional beliefs. His insight was poor with regard to his mental illness. He claimed there was nothing wrong with him and he feels that he did not need psychiatric treatment.
[7] Exhibit R2, page 250
The Applicant explained that he had found it hard to communicate at that time. He felt that he could not be open with the people who asked him questions because he thought they were conspiring against him, and he did not trust people. He noted, however, that he had not been medicated at the time.
Furthermore, the VOTP Treatment Report dated 22 March 2013 includes the following comments:[8]
[The Applicant] was clear during the clinical interview in May 2012 that he did not believe that he is mentally ill and feels that he has been wrongly diagnosed. … In a conversation on 15 October 2012 [the Applicant] disagreed with the diagnosis of Schizophrenia and thought that he was being punished for his beliefs by having his medication increased. … He continues to maintain that he is not mentally unwell and that the medication is not of any assistance to him. …
[8] Exhibit A8, page 13
Mr Kikkert asked the Applicant to explain these comments. The Applicant said, “I thought it was better to retain the little I thought I had.” That explanation is consistent with his apparently long-held (and not unusual) fear that complete openness with mental health professionals may lead to his over-medication. Indeed, in his written statement he had said:[9]
In Long Bay Hospital, other patients would warn you about not admitting to anything to the psychiatrists in case you would end up on medications, dribbling from the mouth and everything. I was afraid of being made to take medications. Even before I went there, other inmates told me that the doctors would medicate me because of my violent past.
[9] Exhibit A1, [20]
By way of contrast, he is now open in his acceptance of the fact that he has schizophrenia. He said to the Tribunal that he is “more aware now. I can see what the professionals are talking about.”
In his written statement he had also tried to explain the circumstances surrounding the assault of the prison officers in 2002:[10]
I assaulted the Corrective Services Office[r]s in 2002 because they check your door each night and yet it seemed like the officers were waking me up on purpose. I complained often to the officers because it felt like I wasn’t getting sleep at all – and in the end I lashed out.
[10] Exhibit A1 [38]
He explained that, at the time, he thought the officers were treating him unfairly, that they were giving him no time in the exercise yard, and no phone calls. But he also said, “I’m not sure if my thinking was distorted … I don’t know if they were doing these things or I thought they were doing them.”
He also recognises that alcohol was a factor in his offending. He said that it clouded his thoughts, and it did not help that he was an angry young man. When asked if he would drink alcohol in the future, he replied, “I don’t think so.”
He described himself as a “walking time bomb” before he was medicated. Staying on his medication, he says, is “pivotal”, “vital”. The medicine is “priceless … it’s part of my life now.” He noted that he has a condition that needs constant care. He also realises that he needs support.
Tellingly, and in my view most insightfully, he said, “The man who needed to be deported has already been deported.”
The evidence of The Applicant’s siblings
The Applicant comes from a large family. He has three brothers and three sisters. All of his sisters (to whom I will refer as “E”, “U” and “S”), and two of his brothers (“N” and “T”), provided written statements to the Tribunal in support of the Applicant. The Applicant’s three sisters and his younger brother “T” also gave oral evidence.
All of them now know about the Applicant’s mental health issues but they have only learnt about them recently. Without exception they are supportive of him. They all want to learn more about his illness, and they are all prepared to support him to the extent that they can if he is allowed to stay in Australia. “U”, who runs a contract fruit-picking business, is able to offer the Applicant almost immediate employment.
“T” and “E” (the two siblings who are closest in age to the Applicant) both described their brother as “more calm” since he is on medication. “T” also said about his brother that it is “like he’s found inner peace”.
I was deeply impressed by their forthright oral evidence. Significantly, they did not try to sugar-coat it. They all gave evidence to the effect that, while they want to support their brother, they will seek help from the authorities if necessary and report any parole breaches or lapses in behaviour.
The evidence of the Applicant’s father
The Applicant’s father, “H”, is elderly. He is the primary carer for his wife, the Applicant’s mother, who has a number of very serious health issues. They live in Perth and, because of the mother’s illness, neither of them could travel to Sydney for the hearing. However, both of them made written statements and the father gave oral evidence, through an interpreter, by telephone.
Like his sons and daughters, “H” wants to learn more about his son’s illness so he can support him.
Dr Adams’ evidence
Dr Adams, the mental health professional who has undertaken the most recent assessment of the Applicant, is of the opinion that the Applicant’s clinical presentation “is in keeping with that of a paranoid schizophrenic illness”,[11] and that “it is reasonable to conclude that during his adult years [the Applicant’s] psychotic symptoms have played a role in his aggressive behaviour”.[12]
[11] Exhibit A7, page 11
[12] Exhibit A7, page 12
Dr Adams took an extensive history from the Applicant in April 2013, during which the Applicant told Dr Adams:
·that he agreed with the diagnosis of schizophrenia;[13]
·that, in relation to his having previously “heard voices”, “it makes no sense to me now, but at the time I believed it”;[14]
·that when he was unwell his thoughts were confused, he was unable to think clearly, and he became increasingly irritable and often acted in a verbally and physically aggressive manner;[15]
·that he felt that his symptoms of mental illness were lessened by antipsychotic medication;[16]
·that he had first seen a psychiatrist in the early 2000s when he was in prison, but “they used to come and try and talk to me and I told them to go away”;[17]
·that he now acknowledged his history of violent offending, stating “looking back now, I can’t believe I didn’t realise something was wrong with me”; he also recalled his tendency to be “suspicious of people” and to experience intrusive persecutory ideas.[18]
[13] Exhibit A7, page 2
[14] Exhibit A7, page 3
[15] Exhibit A7, page 3
[16] Exhibit A7, page 3
[17] Exhibit A7, page 4
[18] Exhibit A7, page 5
Dr Adams discussed with the Applicant the Campbelltown Mall offence which occurred in 2006, and reported as follows:[19]
[The Applicant] recalled that the offence took place in 2006, and that he was released from custody approximately six months prior. He said that during this time he was “living rough” near Campbelltown. He said he was not in a relationship, not working, and not having any regular contact with his daughter. He told me that he was not in receipt of psychiatric medication, because his prescription ran out, for two to three months leading up to the offence. He told me that he was meant to have contact with the Mildura mental health team, but did not as he was not residing there. He said he was disconnected from his family during this time. He recalled smoking cannabis and drinking alcohol at weekends, but denied any history of regular intoxication.
I asked [the Applicant] about his mental health during the time leading up to the offence, to which he replied, “I wasn’t in a good way … I was hearing the voices and that … it was pretty rough”. [The Applicant] recalled feeling unsafe, stating “I couldn’t trust anyone”. He stated, “I was suspicious of everybody”, including family and friends. He described widespread ideas of persecution and believed that various people wanted to harm him. His description of hearing “voices” was consistent with that illustrated above. He recalled feeling confused, irritable and distressed during this period.
[The Applicant] told me that he did not consume any illicit substances or alcohol on the day of the offence. He commented, “I needed to get some money so I went to try and rob a security guard and ended up stabbing him, I hurt him very bad … I was becoming a danger to everybody and myself …”. On further exploration of his mental state at this time, [the Applicant] commented, “to tell you the truth, I don’t remember exactly what was going on”, and he said he was unable to recall his exact thought processes. He stated, “I doubt I even knew what I was doing”.
[19] Exhibit A7, page 6
His written report also included the following:[20]
[20] Exhibit A7, pages 13-14
Whether [the Applicant] is likely to take his medication upon release into the community.
During my assessment [the Applicant] noted his intention of remaining complaint (sic) with psychiatric medication in the future, including upon his release into the community. I understand that he is currently prescribed oral antipsychotic medication. Given [the Applicant’s] clinical picture, history of non-compliance, and his severity of past relapses of psychotic symptoms, in my view it would be pertinent to commence injectable long-lasting antipsychotic medication, if [the Applicant] consents. In my view this would decrease the likelihood of future non-compliance and hence relapse.
If [the Applicant] continues to use his medication in the community, what is his likelihood of reoffending?
In my opinion [the Applicant’s] psychiatric management should include antipsychotic medication, as discussed above, and I also believe that additional facets of management would be of benefit. I believe that [the Applicant] would benefit from: assertive input from mental health services; regular review by a psychiatrist and case worker; psychological therapy to include psychoeducation, and input addressing areas such as emotional recognition, emotional regulation, adaptive coping strategies, and offending behaviour; abstinence from illicit substance and alcohol use; formal drug and alcohol rehabilitation; and social assistance reintegrating into the community and family network. In my opinion, it is reasonable to conclude that the entirety of this psychiatric management plan would mitigate [the Applicant’s] risk of reoffending.
…
Recidivist Assessment
The progress [the Applicant] has made since the commission of the offence.
On the basis of the information currently available, it appears that [the Applicant’s] clinical presentation has stabilised significantly since 2006, with regards his mental health, levels of irritability and aggression, overall insight, and ability to regulate his emotions.
The likelihood of [the Applicant] reoffending.
In considering [the Applicant’s] violence risk it is evident that in (sic) he manifests a number of risk factors that are associated with future violence.
[The Applicant] exhibits historical (also referred to as static risk factors), including: significant previous violence; engaging in violence from a young age; relationship instability; employment problems; substance use problems; major mental illness; and prior supervision failure.
It appears, particularly over recent months, that [the Applicant] has exhibited a significantly lower loading of dynamic risk factors (factors associated with violence in the present time), including: his stabilised mental health and absence of psychotic symptoms; lack of irritability; stability of emotions; lack of negative attitudes; willingness to comply with psychiatric medication; and improving insight into his mental illness.
[The Applicant’s] risk of recidivism can only accurately be appraised whilst also considering his environment and the support and management around him. As already mentioned, in my opinion it is reasonable to conclude that appropriate psychiatric management (as delineated above) will likely mitigate his risk of engaging in future violent behaviour. Should this not be available, however, and a scenario developed whereby [the Applicant] becomes non-compliant with psychiatric medication, falls out of contact with family supports, disengages with mental health clinicians, uses illicit substances, and his environment generally becomes more unstable, in my opinion the likelihood of him engaging in violent behaviour will be significantly increased.
In cross-examination, Dr Adams acknowledged, despite his use of the word “and” in the third last line of that quote, that the presence of any one of those factors could increase the likelihood of the Applicant engaging in violent behaviour.[21]
[21] Transcript (extract), 30 April 2013, P-19, lines 4-17
Dr Adams’ report continued:[22]
The seriousness of the offence should he re-offend.
On the basis of the information currently available, in my opinion it is reasonable to suggest that there is a reasonable likelihood of [the Applicant] engaging in serious violence should he re-offend.
The nature of the risk to the Australian community should [the Applicant] re-offend.
In my view, should [the Applicant] re-offend there is a reasonable likelihood that he will engage in violence towards others. As already discussed, I believe this violence risk will be mitigated by assertive management strategies.
[22] Exhibit A7, page 14
Dr Adams also gave oral evidence. He was asked whether, in his opinion, there was a link between the Applicant’s condition and his criminal history. He said:[23]
I think there is, yes, indeed. As I’ve illustrated in my report, in my opinion [the Applicant] does, indeed, suffer with a severe mental illness by the name of paranoid schizophrenia. Certainly, based upon my assessment and review of the collection of material available, I think that dates back some years. In my opinion, there certainly is a link between [the Applicant’s] symptoms of mental illness and his aggressive behaviour and I’ve certainly tried to illustrate that in my report. I also believe there is a link between his severe mental illness and also his offending behaviour.
[23] Transcript (extract), 30 April 2013, P-4, lines 27-34
He acknowledged later that other factors may have also played a role in the Applicant’s aggressive behaviour.[24]
[24] Transcript (extract), 30 April 2013, P-14, lines 25-27
He was asked about the apparent change in the Applicant’s behaviour since 2006:[25]
MR TREMELLING: Since 2006 until the present, [the Applicant] has no prison offences compared with the significant history of behavioural problems whilst in custody prior to that, such as what we’ve just seen. How do you explain this change?
DR ADAMS: First of all, certainly, yes, in terms of the information I’ve seen, including the account [the Applicant] gave me, that was exactly the history that I gleaned of there - there seemed to be a change upon his incarceration in 2006. In my view, I think there are a number of possible reasons for that change. I think, if we think about mental illness first of all, certainly from my assessment and review of the information it appears that [the Applicant’s] mental health has improved during those years. That appears to be in the context of [the Applicant’s] newfound compliance with psychiatric medication. It appears to have occurred in the context of his more regular follow up with Mental Health Services, certainly over recent years. It also seems to have occurred in the context of quite assertive input from psychological services with the VOTP program, input from other services within the correctional environment offering support. You would also possibly suggest that that was also set in the context of abstinence from illicit substance use, although, certainly, [the Applicant] denied using any illicit substances. I have to say, I haven’t seen any corroborative information of that. In my view, I see all those things as, certainly significant factors leading to the stabilisation of his presentation, stabilisation of his mental health and also as a result that vastly decreased frequency and intensity of aggression since 2006.
[25] Transcript (extract), 30 April 2013, P-6, lines 1-22
As to the Applicant’s level of insight into his mental illness, Dr Adams had noted in his psychiatric report:[26]
During my assessment, in my opinion [the Applicant’s overall level of insight was reasonable, in particular he acknowledged his longstanding mental illness, was aware of the pathological basis of his symptomatology, noted the benefit of psychiatric medication, and noted his willingness to comply with antipsychotic medication and contact with mental health services in the future.
[26] Exhibit A7, page 12
He added, however, that it was “of concern” that this “reasonable” level of insight was being exhibited only recently. Indeed, Mr Kikkert, for the Minister, pointed out to Dr Adams that, according to the VOTP Treatment Report dated 22 March 2013,[27] the Applicant had resisted, as recently as May 2012 and October 2012,[28] any suggestion that he was suffering from a mental illness, and asked:[29]
MR KIKKERT: Dr Adams, did you have any information before you that suggested that [the Applicant] was – that [the Applicant], in his interviews on May 2012 and October 2012, that he wasn’t being truthful in the information that he provided to his mental health professionals?
DR ADAMS: No. At the time of my assessment, certainly I was aware of this information, but certainly I wouldn’t interpret that – what I think we’re seeing is an inconsistency between his account and the collateral information. Certainly I wouldn’t interpret that in terms of the constructive truth, and I could expand on that if you would like me to.
DEPUTY PRESIDENT: Yes, please?
DR ADAMS: Certainly – again, just to highlight, I think perhaps what we’re seeing is an inconsistency between the account that [the Applicant] gave to me at the time of my assessment and the description of his presentation towards the end of last year. Certainly when [the Applicant] – when I assessed [the Applicant], he did give an account that his mental health had been stable and improved for certainly longer than is indicated in the collateral information. From a psychiatric perspective, I wouldn’t see that as unusual, and I wouldn’t personally see that in [the Applicant’s] case in terms of the truthfulness of his account. I think what’s important here is to look at the entries of Dr Chew and Dr Fay at around that time, his treating psychiatrists in the prison, and they actually indicated the possibility of his relapsing mental state. For me, from a psychiatric point of view, that’s the important bit. I think – and this is my hypothesis – that what might have been happening there is that – we know his medication was being decreased. From review of this information, to my mind his mental state was worsening slightly. What happens with psychosis is that, as your symptoms get worse – your delusions, hallucinations and thought disorder – often, hand in hand with that, one’s level of insight decreases, and by insight there I mean the understanding that what you’re experiencing is indeed illness. So perhaps, when [the Applicant] was seen in May, et cetera, last year, and he was saying, “I don’t have an illness,” that’s actually what we’re seeing: we’re seeing a slight relapse of his mental state. And that is related to his level of insight as opposed to the constructive truthfulness.
[27] Exhibit A8
[28] Exhibit A8, page 13
[29] Transcript (extract), 30 April 2013, P-17, line 19 – P-18, line 4
Relevant Law and Policy

Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”.
Section 501(6)(a) provides that a person does not pass the character test if the person has a “substantial criminal record”. Section 501(7) explains the circumstances in which a person has a “substantial criminal record”. One of those circumstances, set out in paragraph (c), is that the person “has been sentenced to a term of imprisonment of 12 months or more”.
It is clear, and not disputed by the Applicant, that he does not pass the character test. That means that it was open to the Minister to cancel his visa.
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act. Provided the directions are not inconsistent with the Act or the regulations, the directions must be complied with: s 499(2) and (2A).
The Minister has made a relevant written direction. It is Direction no. 55 – Visa refusal and cancellation under s 501. The Tribunal is bound by the Direction: see ss 499(1) and (2A) of the Act and the definition of “decision-maker” in Annex B to the Direction.
The purpose of the Direction, as set out in paragraph 6.1(1) of the Preamble, is to “guide decision-makers performing functions or exercising powers under s 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test”.
Direction no. 55 sets out a number of principles that provide a framework for decision-makers in approaching their task. These principles are set out in paragraph 6.3 of the Direction as follows:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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 and disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)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.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or 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.
(5)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.
(6)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 of the Direction states that, informed by the principles just outlined in the preceding paragraph, a decision-maker:
a)must take into account the considerations 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; and
b)is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
Paragraph a) above refers to two distinct parts of the Direction, Part A and Part B, both of which contain considerations that decision-makers “must take into account” when making decisions. Part A is the relevant part for the purposes of the Applicant’s application because it contains the considerations relevant to visa holders (as opposed to visa applicants, who are dealt with under Part B). The considerations, in turn, are divided into “Primary considerations” (paragraph 9) and “Other considerations” (paragraph 10).
Paragraph 8 of Direction no. 55 provides as follows:
8. Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons 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.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The primary considerations are set out in paragraph 9(1) as follows:
9. Primary considerations – visa holders
(1)In deciding whether to cancel a person’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The strength, duration and nature of the person’s ties to Australia;
c)The best interests of minor children in Australia;
d)Whether Australia has international non-refoulement obligations to the person.
The other considerations are set out in paragraph 10 as follows:
10. Other considerations – visa holders
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
b)Impact on Australian business interests;
c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d)The extent of any impediments that the person 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:
i.The person’s age and health;
ii.Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.
Primary considerations
I will deal with the primary considerations in the order in which they are addressed in the Direction.
Protection of the Australian community from criminal or other serious conduct
Paragraph 9.1 of the Direction deals with this consideration, in the following terms:
9.1     Protection of the Australian community
(1)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.
(2)Decision-makers should also give consideration to:
a) The nature and seriousness of the person’s conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
9.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
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) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f)   The frequency of the person's offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
i)   Whether the person 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 person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);
j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
9.1.2The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1)In considering whether the person 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. In making this assessment, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the person reoffending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
I note the principles referred to in paragraph 9.1(1) that the Government is committed to protecting the Australian community from harm, and that non-citizens are expected to be and remain law abiding, to respect important institutions, and not to cause or threaten harm to individuals or the Australian community.
There are aspects of the Applicant’s prior behaviour that are particularly concerning. The offences that he has committed have caused considerable harm to his victims and also, more broadly, to the Australian community. Even the Applicant himself, I am sure, would not contend that he has behaved in a way that would warrant his being referred to as “law abiding”.
According to the NSW Department of Corrective Services’ conviction and sentences record,[30] the Applicant has spent over 15 of the last 18 and a half years in custody. It is perhaps not surprising, therefore, that this is not the first time the Minister has been concerned about the Applicant’s conduct. In 2006 a delegate of the Minister formed the view that consideration should be given to whether the Applicant’s visa should be cancelled at that time. A letter dated 1 November 2006 was forwarded to the Applicant to notify him of that fact. The letter was sent by registered post and on 6 November 2006 it was signed for, apparently by a person with whom the Applicant was then living. The Applicant maintains, and I accept, that the letter was not brought to his attention at that time, although I note that the lack of a warning does not count in his favour: paragraph 9.1.1(1)i).
[30] Exhibit A9
His crimes have been violent, and there is a trend of increasing seriousness over the years. There are multiple instances of serious assaults of police officers and other figures of authority, notably prison officers. The sentences imposed upon him by the courts have been very significant, not only the most recent one in 2006 (10 years, with 6 years non-parole), but also earlier ones including 2 years for assaulting an officer in the execution of his duty, and 3 years 3 months for assault occasioning actual bodily harm to Officer Shaw,[31] both in 2002.[32] In October of that year, Judge Freeman said, in sentencing the Applicant:[33]
He seems to have difficulty with containing his violent outbursts and perhaps particular difficulty with figures of authority.
[31] See [10] and [11] of these reasons
[32] G documents, Exhibit R1, page 125
[33] G documents, Exhibit R1, page 122
Having regard to all relevant factors for the purposes of paragraph 9.1.1 of the Direction, it cannot be doubted that the nature and seriousness of the Applicant’s conduct to date weigh heavily against him.
However, as the Direction makes clear, I must also have regard to the matters mentioned in paragraph 9.1.2. In that context, it is likely that individuals and the Australian community would remain exposed to serious harm should the Applicant engage in further criminal or other serious conduct. Dr Adams said as much in his report: see [53] of these reasons.
But I must also have regard to the likelihood of the Applicant’s so engaging, taking into account the matters listed in b) i. and ii. of paragraph 9.1.2(1) of the Direction.
This is where the evidence of the Applicant and his family members, and that of Dr Adams, is critical. The Applicant himself now fully understands and accepts the seriousness of his mental illness, which is something that had eluded him in the past. He is no longer resistant to treatment or medication. He no longer disguises his symptoms. He appears to be no longer in fear of (or at least wary of) mental health professionals. He has learnt about, and can now identify, the risk factors that are relevant to him. He is acutely aware of the need for support. Equally importantly, his family members are willing and able to offer the support that he needs.
Past periods of estrangement from his family are regrettable but, in my view, are unlikely to be repeated because of the Applicant’s heightened awareness of the importance of family support, his understanding that his family is committed to providing that support, and the family members’ awareness of the need to maintain vigilance over the Applicant’s situation, not only in a general sense but particularly in relation to his compliance with his medication.
The Pre-release Report prepared by NSW Corrective Services recommended the imposition of special conditions on the Applicant’s release to parole, including the following:
·undergoing psychological assessment and counselling if directed; and
·undergoing psychiatric assessment, psychiatric counselling, other medical assessment or other medical treatment if directed.[34]
[34] Exhibit A10, page 9
Dr Adams described these conditions, taken together with the recommended “Level of surveillance/monitoring” and the “Offence-targeted programs and services”, including:
·Home visits in accordance with supervision guidelines;
·Regular contact with police in relation to any concerns;
·Contact with the Applicant’s support network to monitor reintegration and progress;
·Engagement with VOTP maintenance psychologist; and
·Engagement with mental health services,
in the following way:
I would see it as a fairly robust management plan for his community management. I mean, certainly from the psychiatric and perhaps, if you like, a risk management point of view I think there are a number of key issues there which, you know, I would highlight. The first, of course, is the point 27 where it stipulates that he must undergo psychiatric assessment, counselling, medical assessment and other medical treatment. Certainly, as I've suggested in my report, I think [the Applicant] would benefit from regular follow up from Mental Health Services regularly by a psychiatrist, case worker and so on and I could expand upon that if you'd like me to but, certainly, that is touched on there which I think is critical. I think the other important issues for [the Applicant's] case is that the stipulations for psychological follow up, again, and I've highlighted some of the things there I think he would benefit from ongoingly and also I note that it's stipulated he should have engagement with VOTP maintenance psychologist which I think, again, aiding in the transition into the community, certainly with [the Applicant] in mind, would be of a lot of benefit. I think, so that sort of covered the psychiatric and the psychological aspects of it. I think also that very importantly in there are aspects from a social management point of view, if you like, in terms of employment, although you didn't directly point me to that bit but I just flicked over it on page 8. Also in terms of his level of surveillance and follow up which is also critical. What will also be critical for his community management will be communication between all of these parties. There will need to be a line of communication, for example, between Mental Health and parole for this, what I deem to be, a robust management plan to work.
Mr Tremelling questioned him further:
MR TREMELLING: From today there's been evidence from [the Applicant’s] brother, [“T”], and his other siblings outlining their willingness to undergo or demonstrate their commitment to undergo psycho-education with Area Mental Health Services. They are aware that he’ll be released on parole and the breach provisions that can bring him back into custody and they are also aware of the options of contacting mental health services, and they also expressed a willingness to understand community treatment options that can be followed up at the end of his parole period so that [the Applicant] can be managed in the community with relevant breach provisions. How would you describe the adequacy of that family support?
DR ADAMS: As you’ve described it, I would say that’s certainly adequate. You could even suppose this is more than adequate. You know, it’s excellent. From a psychiatric perspective, there is a good body of evidence to suggest that family therapy – and some of the things there you were touching on in terms of family psychoeducation, family support – a support network understanding [the Applicant’s] illness, what happens when things go wrong and what to do. There is a good body of evidence to suggest that that will prevent relapse, and certainly in [the Applicant’s] case, I think that certainly makes sense. It seems to me that, going back, what I understand of [the Applicant’s] case, that’s one of the large factors which was perhaps absent prior to this most recent incarceration.
MR TREMELLING: What might happen if [the Applicant] didn’t have access to his medication?
DR ADAMS: In my opinion, there’s a significant likelihood that [the Applicant’s] mental state would worsen. He would suffer a relapse of psychotic symptoms, and they will certainly deteriorate.

Dr Adams’ reference to a support network being “absent” on an earlier occasion is a reference to the Applicant’s release from prison in early 2006. He went to Mildura to live with his family but the family was given little information on his mental illness, and little detail on the medication he was to take or the importance of it. As has been noted earlier in these reasons, by the time the Applicant re-offended in December 2006, he had not been taking his medication for some months. He had also, unwisely, moved away from his family and back to Sydney, where he had no family or community support.
In conclusion, in relation to this first primary consideration, it is clear that the Applicant has committed a number of serious offences involving violence, and a number of them against persons of authority. This is particularly relevant in the context of paragraphs 9.1.1(1) a) and b) of the Direction. But all of the offences occurred at a time when his mental condition was either not fully diagnosed, or inadequately treated.
The management plan for his future assimilation into the Australian community, described aptly by Dr Adams as “robust”, provides a strong, although admittedly not guaranteed, safeguard against future re-offending. The Applicant’s increased insight into his illness and his risk factors is encouraging. So is his completion of rehabilitative courses during his most recent period in custody. His commitment to taking his medication is unswerving.
While the risk of re-offending and the potential for harm to individuals or the Australian community have not been eliminated, they have been reduced, in my opinion, to an acceptable level. When all relevant factors are considered, there is a low risk of the Applicant’s re-offending if he is released into the community. It is a level of risk which, in my view, and in the particular circumstances of the Applicant’s case, the Australian community will tolerate.
I therefore conclude that this primary consideration favours non-cancellation of the Applicant’s visa.
The strength, duration and nature of the Applicant’s ties to Australia
Paragraph 9.2 of the Direction deals with this consideration, in the following terms:
9.2 Strength, duration and nature of the person’s ties to Australia
(1)Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the person has resided in Australia, including
whether the person arrived as a young child, noting that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the person has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family, social and/or
employment links with Australian citizens, Australian permanent
residents and/or people who have an indefinite right to remain in
Australia.
The Applicant has lived in Australia since he was seven years old. He is now 41. He has never returned to Tonga. He has never travelled outside Australia since he first arrived here in 1978.
The only country with which he has any ties at all is Australia. There are distant family members living in Tonga (including an octogenarian half-sister of the Applicant’s mother) but the Applicant barely knows them, if at all. He has no property interests and no investments of any kind in Tonga.
The Applicant began offending when he was 15 years old. On that basis, by the time of his first offence, he had spent more time in Australia than he had spent in Tonga before he arrived here.
However, given that he has spent so much of his adult life in prison, it could not be said that he has spent any significant amount of time contributing positively to the Australian community.
The links with his family have now been re-established, and they appear to be strong, but that has occurred only recently. There have been lengthy periods of estrangement from his parents, his siblings and their families. I have been told nothing about any broader social or employment links with any relevant people here.
I consider that this consideration slightly favours non-cancellation of the Applicant’s visa.
The best interests of minor children in Australia
The Applicant has one child, who has recently turned 18. She is not a “minor child”.
He has a number of nephews and nieces who live in Australia. When asked how many, he said, “Goodness … close to 30”. Those of whom he spoke most affectionately are the young sons of his brother “T”. They are aged 5 and 4.
I asked both parties’ representatives whether the expression “minor children” used in the Direction extended to children under 18 years of age, who are not the offspring of the visa holder. Mr Tremelling took the view that it did. Mr Kikkert on the other hand preferred my preliminary view that, in context, and particularly since neither of the expressions “minor child” or “minor children” is defined (although the word “minor” by itself is defined in the Act, unsurprisingly, as a person who is less than 18 years old), it did not. I reached that preliminary view on the basis that, in light of the definition of “minor”, to accept that the expression “minor children” extends beyond the offspring of the visa holder would be to give no meaning to the word “children”. If it were intended to extend to all children under 18, this primary consideration would more logically have been expressed as “The best interests of minors in Australia”.
The parties were unable to direct me to any Federal Court authority that deals with this question in the context of Direction no. 55. There is Federal Court authority in relation to the corresponding provisions in the earlier Ministerial Directions (Directions 21 and 41) but they were expressed differently. Direction 21 provided that “in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children” was a primary consideration, while Direction 41 referred to the need to consider “relevant international obligations, including but not limited to the best interests of the child, as described in the Convention on the Rights of the Child”.
The issue boils down to the question whether the potential impact of a visa cancellation on children who are not the offspring of a visa holder may be a “best interests” question in terms of paragraph 9.3 (a “Primary consideration”), a “family … links” question in terms of paragraph 9.2(1) b) (which is also a “Primary consideration”) or a question of the “[e]ffect … on the person’s immediate family” in terms of paragraph 10(1) a) (an “Other consideration”). In my view, neither the fact that paragraph 6.3(6) refers to “minor children and other immediate family members in Australia”, nor the fact that paragraph 9.3(4) a) mandates that “[l]ess weight should generally be given where the relationship is non-parental”, is determinative of the question either way.
The issue was not fully argued by the parties in this case, and for that reason it is not appropriate that I express a final view on the matter. It is preferable, in the circumstances, that I simply assume that paragraph 9.3 of the Direction is not relevant in the Applicant’s case. If anything, such an assumption is adverse to the Applicant.
Whether Australia has international non-refoulement obligations to the person
The fourth primary consideration is whether Australia has any international non-refoulement obligations to the person. There is no evidence of any non-refoulement obligations in the Applicant’s case.
Other considerations
As noted above, paragraph 10 of Direction no. 55 states that “other” considerations, where relevant, must be taken into account. However, paragraph 8(4) states that primary considerations should generally be given greater weight.
Relevant “other” considerations in the Applicant’s case specifically referred to in the Direction are the effect on his immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely; the impact of a decision not to cancel a visa on the Australian community, including victims of the person’s criminal behaviour and their family, where that information is available and the person has been afforded procedural fairness; the extent of any impediments he may face if removed from Australia to his home country in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account his age and health, any substantial language or cultural barriers, and any social, medical and/or economic support available to him in that country.
A letter dated 22 April 2013[35], sent to the Applicant’s solicitor by the First Secretary of the High Commission of the Kingdom of Tonga, explained (without amendment):
We acknowledge with thanks receipt of your letter of inquiry dated 16^th April 2013 seeking information on appropriate services available in the Kingdom of Tonga for a patient who is on an anti-psychotic medication as well as information on appropriate supporting programme which are inplace to support an unemployed patient diagnosed with schizophrenia.
At the outset, Tonga does not have a social welfare programme in place to financially support citizens who are unemployed. Inview of this, an unemployed patient will have to be financially supported by immediate family members and to some extend by extended family members or the community in general. Such support are voluntary and are in the form of providing accommodation, food, clothes, immediate needs, including medical services as required.
Tonga does not have a Disability support pension programme.
…
[35] Exhibit A11
A further letter from the First Secretary, dated the same day[36], said (again, without amendment):
… I overlooked to mention that it is a common knowledge of Tongan hospitals to be in short of or not to have appropriate supplies of appropriate medicine/medication as per demand and as per emergency cases requirements. Inclusive in these short supplies are anti-psychotic medication for patients diagnosed with schizophrenia.
…
[36] Exhibit A12
Those letters indicate, and I find, that the Applicant would face considerable impediments in establishing himself and maintaining basic living standards in Tonga. This is despite the fact that he has no apparent language barriers since he can speak the Tongan language. The reality is that he would have no apparent source of income, and would face a degree of uncertainty around the availability of necessary medication.
The Applicant’s family members would struggle to support the Applicant, both financially and emotionally, if he were to be sent back to Tonga. None of them own their own homes. They all have families, many of them large ones. Those who gave oral evidence said they would do their best to send money to the Applicant if he needed it, but they all noted that they would find it difficult to do so. They were also concerned about the relative lack of medical services in Tonga and the impact that could have on the Applicant’s mental health. None of them would be able to visit him on a regular basis.
The Applicant’s sister “E” perhaps put it best when she noted that his acknowledgement of his mental illness was a significant first step for him. She views his recent openness about his illness as a statement on his part that he needs help. That opportunity for the family to help him would be taken away if he went back to Tonga. And the loss of the opportunity would have a major impact on the family members who are now so very willing to help him.
The Applicant’s younger brother “T” was asked about the impact that the Applicant’s return to Tonga would have on “T’s” two young sons. He acknowledged that it was hard to quantify, but he said that they had built a connection with their uncle. He said, “They would know they’ve lost someone.” And while they could perhaps continue to talk to him on the phone, he said, “It wouldn’t be good to take the face away from the voice.”
Finally, the Applicant’s daughter, who has recently turned 18, would also be affected if her father went back to Tonga. She established contact with him in early 2011 and maintained that contact until confronted with the prospect that he may be deported. The Applicant explained his understanding that she is afraid to start a relationship and get close to him, only then to have it taken away.
I have already dealt with my perception of the impact on the Australian community of a decision not to cancel the Applicant’s visa.[37] As far as the impact on the Applicant’s past victims is concerned, there is no information available to me.
[37] See [xx] of these reasons
In summary, the “other” considerations that are relevant to the Applicant’s circumstances favour non-cancellation of his visa.
Conclusion
Paragraph 7(1) of Direction no. 55 requires the Tribunal, informed by the principles set out in paragraph 6.3, to determine whether the risk of future harm is unacceptable, balancing the likelihood of future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
The principles in paragraph 6.3 include, relevantly, affording a greater degree of tolerance to a non-citizen who has lived in the Australian community for most of their life or from a very young age, and taking into consideration the length of time the person has made a positive contribution to the community and the consequences of a visa cancellation for minor children and other immediate family members in Australia.
I have determined that there is not an unacceptable risk of future harm to the Australian community as a result of criminal activity or other serious conduct by the Applicant.
I have had regard to the primary considerations, discussed above, as required by paragraph 9(1). I have also had regard to the “other” considerations that I consider relevant.
My assessment of all relevant considerations points clearly towards not cancelling the Applicant’s visa.
Upon his release into the Australian community, the Applicant will be on parole until 17 December 2016, requiring that he comply with the directions of the Probation and Parole Service. Any such directions are likely to minimise even further the potential for harm to the Australian community. In addition to that, I am confident that the Applicant’s commitment to his medication regime, his monitoring by a vigilant family, and the provision of any necessary assistance by competent mental health professionals, will provide an acceptable safeguard against the risk of future re-offending.
Decision
The decision to cancel the Applicant’s visa is set aside. I substitute a decision that his visa is not cancelled.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost.
.....[sgd].............................................................
Associate
Dated 15 May 2013

Dates of hearing 29 and 30 April, 3 May 2013

Solicitor for the Applicant

Solicitor for the Respondent

Mr G Tremelling, Legal Aid

Mr S Kikkert, Department of Immigration and Citizenship

[2013] AATA 309

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Judicial Review

Natural Justice & Procedural Fairness

Constitutional Validity

Legitimate Expectation

Proportionality

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/0760
Re	TVCA
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

Tribunal	Deputy President S E Frost
Date	15 May 2013
Place	Sydney