Wytrwal and Minister for Home Affairs (Migration)
[2018] AATA 3486
•17 September 2018
Wytrwal and Minister for Home Affairs (Migration) [2018] AATA 3486 (17 September 2018)
Division:GENERAL DIVISION
File Number:2018/3647
Re:Krzysztof Wytrwal
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:17 September 2018
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd].......................................................................
Dr Damien Cremean, Senior Member
Catchwords
MIGRATION – decision not to revoke mandatory cancellation – long history of offending – protection of community and community expectations – best interests of minor children – strength nature and duration of ties with Australia ––impact of impediments if returned--health concerns – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975(Cth) s 33
Migration Act 1958 (Cth) ss 499; 501; 501CA
Cases
Jagroop v Minister for Immigration and Border Protection (2014)314 ALR 597
Re RGYW and Minister for Home Affairs [2018] AATA 2076
Re Rowe and Minister for Home Affairs [2018] AATA 2708Secondary Materials
Ministerial Direction No. 65
Magdalena Kulik, Monika Małowicka, Ewa Mucha, Anna Górka, Anna Chudzicka and Maciej Ziobro, ‘Schizophrenia: The role of Caregivers in Fostering Co-operation’ (Report, Janssen-Cilag Polska, undated)
UN Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Addendum: Mission to Poland, 20 May 2010, A/HRC/14/20/Add.3
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
17 September 2018
Background
Mr Wytrwal (the Applicant) makes application for review of a decision of a delegate of the Respondent, the Minister for Home Affairs (the Minister). The decision was made on 25 June 2018 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) to refuse his application to revoke the mandatory cancellation of his Class BF transitional (permanent) visa under s 501(3A) of the Act.
The Minister refused to revoke the Applicant’s visa cancellation on the basis that he failed the character test under s 501(6)(a) of the Act as he has a substantial criminal record within the meaning of s 501(7)(c), and he was not satisfied that there was another reason why the original decision should be revoked. The Minister found that there was an ongoing risk to the Australian community of him re-offending, that the Australian community could be exposed to harm should he re-offend in a similar fashion, and that the Australian community would expect that his visa would remain cancelled.
The Applicant is a national of Poland. He was born there in a small village on 29 August 1971 and is aged 47 years. He is one of a family of four. One brother (Mario) died some years ago. He has another brother, Andrew, and a sister, Anna. His mother, Rozalia, is alive aged 72 and resides in Victoria.
The Applicant arrived in Australia on 23 August 1984 aged 13, having been granted a Class BF transitional (permanent) visa. He has remained in Australia since then, that is, for over 34 years.
He went to school in Poland and in Victoria and completed Year 10. Following his departure from school, he worked in factories and as a self-employed bricklayer from 1988 until 2004.
On 5 June 2017 the Applicant was sentenced to an effective term of 6 months imprisonment by the Melbourne Magistrates’ Court for a number of offences, including burglary and theft.
On 22 June 2017 the Applicant’s visa was cancelled under s 501(3A) of the Act and he was invited to make representations to the Minister to seek revocation of that cancellation decision. He made representations to the Minister in accordance with the invitation and s 501CA(4)(a). He is seeking a review of the decision to not revoke the decision to cancel his visa.
Since leaving school, and from the age of 20, the Applicant has engaged in various criminal activities, which expand over a lengthy period of time. His National Police Certificate is set out in the Appendix.
RELEVANT LEGISLATION
The discretion to cancel the Applicant’s visa is guided by Ministerial Direction No. 65 (the Direction), which the Tribunal is bound to apply in accordance with s 499(2A) of the Act.
Paragraph 8(1) of the Direction specifies that primary and other considerations must be taken into account when considering whether to exercise the discretion. Paragraph 13 of the Direction provides that the Primary considerations are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
These primary considerations should generally be given greater weight than other considerations, pursuant to paragraph 8(4).
Paragraph 8(2) of the Direction specifies that in applying primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
As regards the risk of future criminal conduct and the application of the character test, paragraph 6(2) of section 2 of Annex A of the Direction states the grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person would engage in such conduct if allowed to remain in Australia.
Other considerations are set out in paragraph 14(1) of the Direction, and include, but are not limited to:
·International non-refoulement obligations;
·The strength, nature and duration of ties;
·The impact on victims; and
·The extent of impediments if removed.
Issues and Contentions
In both the written and oral submissions of his legal representatives, the Applicant concedes that he does not meet the character test in s 501(6) of the Act. I am satisfied that he fails the character test in s 501(6) of the Act as a result of his substantial criminal record as defined under s 501(7). The central issue in this matter is therefore, whether there is another reason the cancellation of his visa should be revoked.
At the hearing, Ms R Noronha, of Clayton Utz appeared on behalf of the Minister. She contended that the considerations of the protection of the community and the community expectations outweigh the other considerations, and submitted that the decision under review should be affirmed. Ms Noronha referred me to the decision in Re RGYW and Minister for HomeAffairs [2018] AATA 2076, which I have considered.
Mr D Carolan of Counsel appeared for the Applicant. Conversely, he contended that considering all the evidence before the Tribunal, the decision under review should be set aside, and the discretion in s 501CA(4) should be exercised in the Applicant’s favour on the basis of the relevant considerations. Mr Carolan referred me to the decision in Re Rowe and Minister for Home Affairs [2018] AATA 2708, which I have also considered.
Hearing
At the hearing the Applicant gave sworn evidence. Sworn evidence also was given by his brother, Andrew and his daughter, Klaudia. His sister, Anna, did not give evidence and no other evidence was called. It was of concern to me, and I made it known that I had no medical evidence before me concerning the Applicant’s health and mental condition.
The Minister did not call any witnesses.
By way of documentary evidence the Tribunal had before it the G-Documents and further documents submitted by both the Respondent and the Applicant which were received into evidence. The documents provided by the Respondent related to certain health records of the Applicant which I called for at the commencement of the hearing as I had nothing formally before me relating to the Applicant’s claimed condition of paranoid schizophrenia. Originally, it was submitted by the Respondent that I could not take these into account by reason of the lack of discretion afforded to the Tribunal to take into account such documents in accordance with s 500(6J) of the Act. The Respondent contended that as the documents were requested at the commencement of the hearing, they had not been given to the Minister at least 2 business days before the hearing, but this later was not pressed. Section 500(6J) of the Act states:
If:
(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section..
I am satisfied I may act to receive such information under s 33(1)(c) of the Administrative Appeals Tribunal Act1975 (Cth).The key point of distinction is that the documents were not lodged by the Applicant in support of his case. In fact as I recall Mr Carolan may even have conceded that the documents in question ultimately may not support the Applicant’s case. I called for the documents to be provided, in order for the Tribunal to properly inform itself of the matter in relation to the Applicant’s claim of paranoid schizophrenia. In carrying out my fact finding role I regarded this claim to be of central importance to applying the considerations under the Direction.
In support of this position I refer also to Jagroop v Minister for Immigration and BorderProtection (2014)314 ALR 597, where the Full Federal Court considered the words in support of under s 500(6J) of the Act (at 598):
The words “in support of the person’s case” in each of ss 500(6H) and (6J) of the Migration Act are words of qualification, and indicate that the prohibition in those sections relates only to information and documents presented by an applicant as part of their case-in-chief. The provisions of the AAT Act and s 500 of the Migration Act are intended to operate in conjunction with one another. Section 33(1)(c) of the AAT Act contemplates that the AAT may inform itself by regard to materials to which reference was not made at the hearing, and a response to such materials raised by the AAT would not be presented “in support of the person’s case”, and so the AAT would not be precluded by s 500 from having regard to that response.
Further, the Court stated (at 618):
…we would not regard an applicant’s response to a matter raised by the AAT of its own initiative as being presented “in support of the person’s case” and therefore a matter to which the AAT could not have regard. The response will be what it is, namely, an answer to the AAT’s question or invitation. Whether it be supportive of, adverse to, or relatively neutral in, the applicant’s case will be a matter of no consequence as it will not have been presented by the applicant as part of his or her case-in-chief.
At the commencement of the hearing I was also provided with a document titled, ‘Final Report of the Magistrates Court of Victoria (Assessment &Referral Court (ARC) List)’, marked Confidential.
Documents provided to me on behalf of the Applicant included a United Nations, General Assembly Report of the Special Rapporteur dated 20 May 2010 and a report titled ‘Schizophrenia: The role of Caregivers’.
EVIDENCE
Applicant
The Applicant, who is currently in detention, confirmed the contents of his Witness Statement dated 31 August 2018.
In his Statement, he says that I accept responsibility for my offending in the past and acknowledge the impact on victims. In oral evidence, he repeated I accept my criminal history. He says I am deeply sorry for my past offending. Furthermore, in his Statement he says that while I know that I am responsible for my actions, I wish for the Tribunal to know my terrible circumstances and health at the time of offending which contributed to my offending, how I have addressed these in recent times, and my desires and will to become a good and productive member of the Australian community.
The Applicant also mentions in his Statement that he has suffered from serious mental health problems, that he suffers from paranoid schizophrenia and that in a car accident he sustained an acquired brain injury that was only diagnosed four or five years ago. He also states that since he was 18 years of age he has had bad stomach problems. He explains in his Statement that he started using drugs because of his stomach pain but that about three years ago he had an operation to remove his stomach and since then I …did not have the need to take drugs.
The Applicant also gave oral evidence in relation to the nature of his operation. He told the Tribunal that his stomach was completely removed and his oesophagus joined to his intestines. He further stated that he needs to be checked annually for this. He must eat only certain soft foods or foods and drinks high in acidity such as tomatoes and orange juice. He stated that he also needs to take vitamin supplements. He stated that due to the operation my eyes opened up to life.
In his Statement, and also in his oral evidence, he explained that the medication he takes for his schizophrenia makes him drowsy and forgetful. When he does not take it he said I experience blackouts where I don’t remember anything I do. As a result he says, there are a lot of things in my past I don’t remember. He described his blackouts as having increased in length over time, from a few minutes to half a day in duration.
He further states that I can’t recall most of my offending: often, he says, I would find myself in the police station and not remember how or why I got there. He says that as I understand the vast majority of my offending has been me taking drugs, stealing things and/or breaking into people’s houses. He says from what he understands, sometimes I have broken into people’s homes because I was extremely unwell, other times I had broken into house to steal things so I could afford dugs.
In oral evidence the Applicant clarified that he takes Seroquel (600mg) daily, which is an anti-psychotic medication and Zoloft (200mg), which is an anti-depressant. He stated that he is also on a methadone program and said he knows he must continue to take methadone. His view is that if he goes off methadone I won’t last long. In his Statement the Applicant mentions that he has three daughters: Kasia, Klaudia and Helena. Kasia and Klaudia are adults now and he says we are very close. Helena he says is aged 10 years and she lives interstate. He says she has a good relationship with my other daughters. He says I know that I have not had a close relationship with her in the past but he says he wants to work on building a good relationship with her. Further, he states I know how important it is for a child to have a relationship with their father, I want to be a good influence on her. In oral evidence, however, he said he last saw his youngest daughter, Helena, three and a half years ago. He explained though that Helena’s mother has indicated that if Helena wants to see her father in the future she will not prevent it. He said he has been paying child support for her but has now fallen behind due to being in prison.
The Applicant also told the Tribunal that following the completion of his six month community corrections order at the Salvation Army opportunity shop in Richmond (which is he was sentenced to on 11 December 2015), he decided to continue volunteering there. He said that his managers had been happy with his work and that he was responsible for accepting donations. He further said he was happy that he was doing something important. I did not have before me, however, a statement from a worker at the Salvation Army shop corroborating the Applicant’s oral evidence and I raised this point with Mr Carolan during the hearing.
Furthermore, the Applicant stated in oral evidence that he knows no one in Poland and believes he does not speak current conversational Polish. In his Statement he says if he is returned to Poland I am afraid of what will happen to me. He says I don’t know anything about Poland and I don’t know how I would support myself in Poland without people to help me to get on my feet and look after me. He says I won’t know how to find somewhere to live, or how to get the medication I need or on a methadone program.
In cross –examination the Applicant agreed he had been offending for 25 years with almost 200 offences recorded against him but he explained some of the offences occurred when he would sleep in cars at night. He said he had spent time in homeless persons’ refuges including Ozanam House in Melbourne.
In cross-examination also, he agreed he had not paid a sum of $22,280 due by way of compensation and ordered to be paid by the Melbourne Magistrates Court on 12 April 2006.
He agreed in cross examination that during 2016-17 he had taken maybe one or two drugs. but he repeated what appeared in his Statement that I have been completely clean for about two years. He said he no longer associated with the bad company of former times in and around Fitzroy. The Applicant told the Tribunal that he did not think he would ever go back to drugs. He further stated that his time in detention has been very helpful to him, in that it has open[ed] [his] mind that he has to take his medication every day. He stated that detention has given him time to think things through slowly and to realise that he will stick to his medication schedule. He said that he had not used any illicit substances whilst in immigration detention.
Mr Andrew Wytrwal.
Mr Andrew Wytrwal is the brother of the Applicant and gave evidence confirming his Witness Statement dated 30 August 2018.
He said in that Statement and repeated in evidence that he and his brother have a close relationship. He said he lives with their elderly mother in a 3 bedroom owned property in Seddon. He stated that his mother’s health is getting worse and that she is losing a bit of vision. If the Applicant was not required to return to Poland he would live in the house with them. He stated that he had a good relationship with their mother and that she looks after him and helps him to take his medication.
Mr Andrew Wytrwal said that he would make sure that the Applicant took his medication, if he was to be released back into the community. He said if he is allowed to stay in Australia all of our family will make a special effort to support him. Because the Applicant’s stomach was now better, he said he does not feel like he needs to self-medicate or take illicit drugs. In oral evidence Andrew Wytrwal confirmed that he had visited the Applicant in hospital when he had had his stomach surgery.
In oral evidence also, he said he had visited Poland on two occasions, one for about four months. He told the Tribunal that he had stayed with some cousins.
Ms Klaudia Wytrwal
The Applicant’s daughter, Ms Klaudia Wytrwal, gave evidence confirming the contents of her Witness Statement dated 30 August 2018.
In her Statement Ms Wytrwal said that she has a very close relationship with her father. She described her father is a good father to her and to her sister Kasia. She said we look up to him a lot and rely on him for support, and he relies on us for support. She told the Tribunal that following his stomach operation, she went to visit her father at Footscray Hospital.
Ms Wytrwal also says in her Statement that her father is a gentle loving man and she says I can’t possibly describe how horrible it would be if he was deported from his home country of Australia. She says all of her family has made Australia home and to deport him to a foreign land would just kill us all. She further stated that without her father’s support, she does not really have a reliable parent that [she] can go to at this point.
ANALYSIS: PRIMARY CONSIDERATIONS
Protection of the Australian community
The Direction relevantly provides at paragraph 13.1(2) that when considering the protection of the Australian community, decision-makers should have regard 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.
Nature and seriousness of the conduct
As mentioned previously, it was conceded that the Applicant fails the character test in s 501(6) of the Act.
I am satisfied that the Applicant ’s lengthy criminal history constitutes a substantial criminal record as defined in s 501(7) of the Act; which in turn is constituted by serious offending which, by the Direction (paragraph 13.1.1(1)(a)), must be viewed very seriously. I am able to accept that the Applicant now regrets his actions that have led to his criminal history but that does not mean that his conduct should now be excused.
Of particular concern is that the Applicant’s conduct over a 25 year period is constituted by at least six occasions of assault police and four of resist police. Over that same period there are also various convictions for theft, burglary, assault, possess drugs wilful damage to property, going equipped to steal, possess prohibited weapons, recklessly cause serious injury, intentionally cause injury, other drug and alcohol offences, driving offences including driving while disqualified, and fraudulent use. All in all his offences over that period of time are about 200 in number.
His evidence to me was that many occasions, he was heavily affected by the consumption of drugs and would suffer from blackouts. This is also reflected in his Witness Statement, whereby he said I can’t recall most of my offending. Often he says he would find himself in a police station not remembering how or why he got there. He attributes the commencement of his drug taking to the stomach problems he suffered from an early age. No doubt though his mental state of paranoid schizophrenia has also contributed together with his acquired brain injury due to the car accident.
In my view the criminal record of the Applicant speaks for itself, and his offending to date has been deplorable, involving mostly property offences but involving also offences of violence against the person. Also concerning is the repeated nature of the offending, over a long period of time with periods of time in jail having had no apparent deterrent effect. In relation to his six occasions of assault police in particular, I consider paragraph 13.1.1(1)(b) of the Direction applies, which states that crimes committed against government representatives or officials in the performance of their duties are serious.
In addition, in considering paragraph 13.1.1(1)(g) of the Direction, the Applicant received a number of warnings advising him that if he engaged in any further serious conduct his visa could be cancelled under s 501 of the Act. For instance, he received a letter from the then Department of Immigration and Border Protection only in November 2016, notifying him of a decision to revoke his visa cancellation but advising that his case could be reconsidered in the event of further criminal offending. That was less than two years ago. I find that the Applicant knew that he was at risk of deportation.
Risk to Australian community of re-offending
In turning to consider paragraph 13.1.2 of the Direction, drug usage appears to be the major factor in much of the Applicant’s serious offending. He acknowledged as much in his evidence before the Tribunal. It must be regretted that this may have started out due to his stomach condition and his taking drugs to ease his pain.
In evidence before the Tribunal the Applicant stated he had been completely clean of drugs, except those prescribed, for the last two years. There is some documentary evidence before the Tribunal that this may not be so at least to some extent. But I make no findings about that because the evidence was ambiguous.
Of considerable concern is the risk of the Applicant re-offending. His Counsel said he could not say the Applicant is of no risk to the community if he is released. That is very troubling given the Applicant’s record and the nature and frequency of his offending. However, no actual assessment of his risk of re offending, undertaken by a psychologist or other qualified professional, was provided to the Tribunal. Even if I should assess his risk of re-offending as low due to various factors, including his age and his state of health, I do not accept that that means the risk is remote or distant or may safely be ignored and I am satisfied therefore that the Applicant is a danger to the community.
For the reasons set out above, I consider the protection of the Australian community to be a consideration which weighs strongly against the revocation of the cancellation of the Applicant’s visa.
Expectations of the Australian community
Paragraph 13.3 of the Direction relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of 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.
As outlined above, there is a general expectation of the community that non-citizens will obey Australian laws while in Australia.
Given the repeated nature of the offending of the Applicant from 1992 to 2017, the seriousness of it over that time ranging from various driving offences to assaults including against police officers to numerous thefts and burglaries and the fact that the Applicant had received warnings from the relevant Department of the potential consequences of his offending, I find that the consideration of the expectations of the Australian community weigh against revocation of the cancellation of the Applicant’s visa. In reaching this conclusion, I have taken into account the Applicant’s contributions to Australia working as he did in factories and in the construction industry as a bricklayer, and working in a voluntary capacity for the Salvation Army at the Richmond outlet as well as the fact that he has been residing in Australia since 1984.
In my view, the Australian community is entitled to expect, and would expect, protection from the Applicant, and that his visa would remain cancelled.
Best interests of minor children
I am asked to find that it is in the best interests of minor children in Australia to affirm the decision under review despite the Applicant’s criminal record. My understanding is that this issue concerns Helena. The Applicant’s other daughters are now adults.
As regards Helena, the claim of the Applicant in evidence is that he wants to be a good influence on her and to work to build a close relationship with her. I am told Helena has a good relationship with the Applicant’s other daughters.
The fact is, however, that the Applicant has not seen Helena for the last three and a half years and it was not explained to me, except in generalities, how it is in her best interests for him to remain in Australia for her benefit.
The Applicant said he wants to be a good influence for Helena and to set a good example for her, but this in my view is simply an unsustainable claim in the circumstances given his history. In this case the Applicant is a person with a long criminal record, including for assaults of police. Nonetheless, I do acknowledge in a general way that a father’s presence is an important factor in the life of a child.
I note that at the hearing no evidence was given by Helena or by her mother, and no evidence was produced from Helena (or her mother) to corroborate the oral evidence given by the Applicant with regard to what her wishes are as to having a relationship with her father. I cannot conclude whether she would state that she wants her father to be any or no influence in her life. In addition to a lack of evidence from Helena or her mother, I also have no report of a psychologist or similar on the point.
For these reasons I have little basis on which to make a finding that is in the best interests of a minor child in Australia for the Applicant to remain here.
OTHER CONSIDERATIONS
Strength, nature and duration of ties
There can be no doubt that the Applicant has ties with Australia. He came to Australia in August 1984 and has lived here since then, that is, for over 34 years. He has not left Australia in that time. His brother and sister live in Australia as does his mother and his three daughters.
His ties with Australia are much stronger than his ties with Poland where, he says he knows no one. He even says I don’t know anything about Poland. Further, he believes even he does not speak current conversational Polish. On the other hand, in the course of living here the Applicant has been educated in Australian schools and has worked in factories and in the Australian construction industry. He has fathered children here who are Australian citizens.
I did not hear any evidence about the Applicant owning any real or other property in Australia. I also did not hear any evidence about the prospect of employment pending his possible release into the community.
Nor was any evidence given by the Applicant about any ongoing or permanent romantic relationships he may have. The evidence given also indicated that the persons he had been associating with prior to his incarceration in and around Fitzroy were bad company and people he would now be avoiding on re-entry to the Australian community, if he were afforded that chance.
The nature of the Applicant’s ties with Australia seem to be therefore entirely familial, extending over a lengthy period of 34 years or more. But for some or a large part of that time I would understand him to have been homeless or living in refuges.
I am clear about the strength of his relationship with his mother and his brother Andrew and his daughter Klaudia but I am unclear about the strength of his relationship with his sister Anna. As I have noted, she was not called to give evidence. Nor was his daughter Kasia. As I have said I have not heard evidence from his daughter Helena or her mother or from the mother of his daughters, Kasia and Klaudia. Nor was any one called to give evidence from the Salvation Army shop in Richmond and no character references were tendered.
In the circumstances, although several of these considerations weigh in favour of the revocation of the cancellation of the Applicant’s visa, on balance I am not satisfied I can proceed to make a finding that the strength, nature and duration of his ties with Australia are such that they outweigh considerations supporting non-revocation.
Extent of impediments if removed
Non refoulement obligations of Australia I agree do not arise in this matter.
There is in my view, however, the serious issue of the Applicant’s ability to access medical assistance in Poland if he must be returned there.
Despite the Applicant’s history of a chronic stomach condition for which he was operated on which resulted in his stomach removal, I was not provided with any up to date medical reports on his general state of health. I accept his evidence about the nature of the surgery he underwent and in my view that surgery is of an advanced kind. But apart from the Applicant himself saying he must be reviewed annually (and he may not have remembered that correctly), I have no information on whether he must be monitored or to what extent he must be monitored, or what must be done in the event of a mishap, for instance, when eating food.
I consider this a serious omission or deficiency in the evidence before the Tribunal. I have simply no information about the true nature of his condition and I cannot speculate or draw conclusions with regard to this point from evidence which is not before me.
For instance, if I had evidence that the Applicant needed frequent or constant monitoring I would require more searching information than I have at present on whether his needs are able to be met in the Polish medical system.
I have to assume, in the absence of information, that in Poland generally he can expect to be treated by the medical system and have the same rights and access to the health care system in the same way as any other Polish citizen. There was a clear lack of sufficient detailed information on the state of the Polish medical system before me and whether it can cater to the special needs of the Applicant, not only concerning his digestive system but also considering that he is a paranoid schizophrenic who has an acquired brain injury.
After some prompting by me at the commencement of the hearing I received documentation which satisfies me I may find as a fact that the Applicant suffers from paranoid schizophrenia. The only documentation I have concerning his claimed acquired brain injury is a reference to a Dr Loretta Evans, who assessed him apparently on 7 July 2015 as having a mild acquired brain injury secondary to alcohol and cannabis abuse. That is mentioned in the Final report of the Magistrates Court of Victoria. But Dr Evans was not called to give evidence before me.
For the fact is, that it is crucial to know whether someone’s special needs are able to be met in the event a cancellation of a visa is not revoked. If their special needs cannot be met, physical and mental, then it may be the case that the impedimenta they will experience in deportation are overwhelmingly against a visa being cancelled.
Because there is a lack of relevant information which is before the Tribunal on behalf of the Applicant as to his ongoing needs, except for reference to the bleak conditions in Poland for schizophrenics and a general document on schizophrenia, as well as medical conditions in Poland, I am unable to make a finding that the impediments the Applicant will experience in Poland are such as to decisively weigh against his deportation.
I am satisfied however that the Applicant has an ongoing need to be on a methadone program and has a need for medication to ensure mental stability.
Ultimately, this is a consideration which weighs in favour of the revocation. As noted, it is regrettable that there was an insufficient amount of information before me in relation to the critical matter of the Applicant’s need for ongoing medical attention and monitoring of his physical and mental conditions. In is particularly regrettable given the serious nature of the matter and the risk of deportation to the Applicant.
Where it is known a person has serious health concerns, it is to be expected that the Tribunal will be fully informed on all relevant matters including the current status of those health concerns and whether they are able to be adequately catered for in the overseas destination.
CONCLUSION
I am satisfied that the Applicant fails the character test as conceded and that I may view his lengthy criminal record as involving serious offending. Indeed, aspects of his criminal record I am satisfied I may view very seriously.
Given the nature of his offending, I consider the Australian community is entitled to expect protection from the Applicant from the kinds of conduct he has engaged in which constitute his criminal history.
Again, given the nature of his offending, I am satisfied the Australian community deserves to be and should be protected from such conduct and I am satisfied there is a risk that such conduct will or may occur again if the Applicant is released into the community.
On balance, I am not satisfied any consideration is such as to reasonably require a finding that the Applicant’s visa cancellation should be revoked. Without speculating, that may not have been my position if the Tribunal had before it more sufficient information with regard to the Applicant’s mental and physical state and his need for ongoing monitoring and care.
On the information placed at my disposal, I am satisfied that the legitimate interests of the Australian community, given the Applicant’s serious criminal history, outweigh those of the Applicant in remaining in Australia
In all the circumstances I am satisfied the decision under review should be affirmed.
88. I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the written reasons herein of Dr Damien Cremean, Senior Member
[sgd]......................................................
Associate
Dated 17 September 2018
Date(s) of hearing 5-7 September 2018 Counsel for the Applicant
Solicitors for the Applicant
Mr David Carolan
Virajith Hewaarachchi, Refugee Legal
Solicitors for the Respondent
Ms Rachel Noronha, Clayton Utz
APPENDIX
Applicant’s National Police Certificate
Court Date Offence Court Result Melbourne Magistrates Court 5 June 2017 Contravene community correction order Proven Melbourne Magistrates Court 5 June 2017 Breach re 11/12/2015 theft (4 charges)
89.
90. att. Theft from motor vehicle
91. commit indictable offence whilst on Ball Granted (3 charges)
92.
93. burglary (3 charges)
94.
95. theft of a motor vehicle
96.
97. att. Burglary
98.
99. contravene a conduct condition of bail
100.
101. intentionally damage property (3 charges)
102.
103. without
104. authorisation/excuse enter private place
105.
106. fail to answer Bail Granted (3 charges)
107.
108. possess
109. methylamphetamine
110.
111. possess prohibited weapon without exemption/approval
112.
113. carry prohibited weapon without
114. exemption/approval
115.
fraudulently use licence auth/req by rsa
Breach of community correction order. Order cancelled. Aggregate 3 months imprisonment Melbourne Magistrates Court 5 June 2017 116. Theft from shop
117. (shopsteal)
118.
commit indictable offence whilst on Bail Granted (3 charges)
119. theft of a motor vehicle theft (6 charges) unlicensed
120.
121. driving burglary (4 charges)
122.
123. go equipped to
124. steal/cheat
125.
possess controlled weapon without excuse
126. Aggregate 6 months
127. Imprisonment. Concurrent.
128. effective total state term
Imposed is 6 months
Melbourne County Court 25 October 2016 Theft (4 charges)
Dishonestly undertake in retention stolen goods (7 charges)
Aggregate 15 days imprisonment Melbourne Magistrates Court 2 September 2016 129. Att. Theft from motor vehicle
130.
131. known thief loiter in
132. public place
133.
commit indictable offence whilst on ball
134. deal property suspected proceed of crime
135.
136. negligently deal with proceeds of crime
137.
138. possess controlled weapon without excuse
139.
140. go equipped to steal/cheat (2 charges)
141.
142. possess drug of dependence (3 charges)
143.
possess clonazepam
Aggregate 3 months imprisonment. Concurrent. effective total state term imposed is 3 months 144. Melbourne Magistrates Court Sitting At Melbourne County Court
11 Dec 2015
Breach re 18/05/2011
145. theft of a motor vehicle
146. deal property suspected
147. proceed of crime
148. drive whilst disqualified
149. retention of stolen goods
theft
Breach re 18/05/2011
150. use unregistered motor
151. vehicle - highway
152. careless driving of a
motor vehicle
Theft (4 charges)
153. att. Theft from motor vehicle
154.
155. commit indictable
156. offence whilst on Bail
157. Granted (3 charges)
158.
159. burglary (3 charges)
160.
161. theft of a motor vehicle
162.
163. att. Burglary
164.
165. contravene a conduct
166. condition of bail
167. intentionally damage
168. property (3 charges)
169.
170. without
171. authorisation/excuse
172. enter private place
173. fail to answer Bail
174. Granted (3 charges)
175.
176. possess
177. methylamphetamine
178.
179. possess prohibited
180. weapon without
181. exemption/approval
182.
183. carry prohibited weapon
184. without
exemption/approval
185.
186. Breach of community based order. Order cancelled. Aggregate 60 days imprisonment
187. Breach of community based order. Order cancelled. Convicted and fined aggregate $400
Aggregate 231 days imprisonment. Also convicted community corrections order for 6 months.
Melbourne Magistrates Court Sitting At Melbourne County Court 11 December 2015 Fraudulently use licence auth/req by rsa Convicted community corrections order for 6 months. Melbourne Arc 3 December 2015 188. Contravene suspended sentence order
189.
Fall to answer Bail. Granted
Breach re 19/06/2013
190. att. Theft of a motor
191. vehicle
192.
193. possess cannabis
194.
195. theft of a motor vehicle
196. theft (2 charges)
197.
198. deal property suspected
199. proceed of crime (5
200. charges)
201.
202. go equipped to
203. steal/cheat
204.
205. unlicensed driving
206. obtain property by
207. deception (3 charges)
208.
209. fail to answer Bail
210. Granted (4 charges)
211.
burglary (2 charges)
Proven
Convicted and discharged
212. Breach of suspended sentence. Sentence re-instated. 6 months imprisonment
NJC Magistrates- Collingwood 19 June 2013 Att. Theft of a motor vehicle
213. deal property suspected proceed of crime (5 charges)
214.
215. go equipped to steal/cheat
216. possess cannabis theft of a motor vehicle theft (2 charges)
217. unlicensed driving
218.
219. obtain property by deception (3 charges)
220.
fail to answer Bail Granted (4 charges)
burglary (2 charges)
Aggregate 6 months imprisonment. Sentence suspended for 18 months under section 27 Sentencing Act NJC Magistrates- Collingwood 18 May 2011 221. Theft of a motor vehicle
222.
223. deal property suspected proceed of crime
224.
225. use unregistered motor vehicle – highway
226.
227. careless driving of a motor vehicle
228.
229. retention of stolen goods
230.
231. Theft
232.
Drive whilst disqualified
233. Convicted and a community
234. based order for 15 months.
235. to perform 200 hours of
236. unpaid community work over
12 months
237. Convicted and a community
238. based order for 15 months.
239. to perform 200 hours of
240. unpaid community work over
241. 12 months. Cancelled from
driving for 3 years
NJC Magistrates- Collingwood 16 February 2011 Failure to comply with cbo Proven NJC Magistrates- Collingwood 16 February 2011 Drunk in a public place
Fail to answer Bail. Granted
With conviction, adjourned to 16/06/2011 Sunshine Magistrates Court 15 February 2010 242. Go equipped to
243. steal/cheat
244.
245. possess controlled weapon without excuse
246.
247. assault police
248.
Burglary
249. Convicted and a community based order for 12 months. To perform 50 hours of unpaid community work over 3 months.
Convicted and a community based order for 12 months, to perform 50 hours of unpaid community work over 3 months. To pay compensation $655.73
Melbourne County Court 9 December 2009 250. Have prescribed concentration 3hrs – blood
251.
unlicensed driving
252. Aggregate 4 months imprisonment. Sentence suspended for 12 months under
section 27 of Sentencing Act.
Licence and permits cancelled and disqualified for 4 years
Sunshine Magistrates Court 4 August 2008 253. Theft from shop
(shopsteal)
1. 10 days imprisonment.
Concurrent. Effective total state term imposed is 10 days
Melbourne County Court 25 July 2008 Burglary (5 charges)
theft (8 charges)
theft of a motor vehicle (3 charges)
2. assault police (2
3. charges)
4.
5. resist police
6. theft from motor vehicle
7. (2 charges)
8.
9. go equipped to
10. steal/cheat (5 charges)
11.
12. drive whilst disqualified
13. fraudulently use
14. registration label/plate
15. unlicensed driving (2
16. charges)
17.
18. handle/receive/retention
19. stolen goods (2 charges)
20.
21. fail to answer Bail
22. Granted (4 charges)
23.
24. failure to comply with cbo
25. theft from shop
26. (shopsteal) (2 charges)
possess controlled
27. weapon without excuse
28.
29. attempt theft
30.
31. dishonestly assist in
32. retention of stolen goods
33.
34. deal property suspected
35. proceed of crime
36.
37. dishonestly receive
38. stolen goods
39.
40. Intentionally destroy
41. Property
42.
43. wilfully damage property
44.
45. criminal damage (intent
46. damage/destroy)
47.
possess cannabis
48. Aggregate 18 months imprisonment. Sentence wholly suspended for 12 months
under section 27 of Sentencing Act
Melbourne County Court 25 July 2008 Theft of a motor vehicle
49. drive motor vehicle without licence
50.
51. ex. Presc conc
52. 3hrs-breath-drive vehicle (2 charges)
53.
Theft of bicycle
Aggregate 18 months imprisonment. Sentence wholly suspended for 12 months under section 27 of Sentencing Act. Licence cancelled and disqualified for 2 years
54. Aggregate 18 months imprisonment. Sentence wholly suspended for 12 months
under section 27 of Sentencing Act. To pay $1500 compensation
Broadmeadows Magistrates Court 27 June 2008 Known thief loiter in public place 42 days imprisonment. Concurrent. Effective total state term imposed is 42 days. Broadmeadows Magistrates Court 28 May 2008 Failure to comply with cbo Proven Broadmeadows Magistrates Court 24 January 2007 Failure to comply with cbo (2 charges)
Breach re 12/04/2006
Burglary
55. Theft
56.
57. theft of a motor vehicle
58.
59. assault police
60. resist police
61.
62. Theft of a motor vehicle (2 charges)
63.
theft from motor vehicle drive whilst disqualified burglary
Proven
Convicted and a community based order for 9 months
64. Aggregate 180 days
65. imprisonment. Concurrent.
66. sentence is partially
suspended under section 27 of the Sentencing Act 1991. Term to be served is 58 days. For 9 months. Effective total state term imposed is 58 days
Broadmeadows Magistrates Court 24 January 2007 Theft
67. Go equipped to steal/cheat
68.
69. fraudulently use reg label/plate
70.
unlicensed driving
71. handle/receive/retention
stolen goods (2 charges)
fail to answer Bail Granted (2 charges)
72. Aggregate 180 days
73. imprisonment. Concurrent.
74. sentence is partially
75. suspended under section 27
76. of the Sentencing Act1991.
77. term to be served is 58 days.
78. for 9 months. Effective total
79. state term imposed is 58 days.
to pay compensation $275.48
80. Convicted and a community
based order for 9 months
Melbourne Magistrates Court 12 April 2006 Burglary
81. theft of a motor vehicle
82. assault police resist police
83.
84. Theft
85.
Breach of suspended sentence order
86. Convicted and a community based order for 12 months. To perform 150 hours of unpaid community work over 12 months.
87. Convicted and a community based order for 12 months.to perform 150 hours of unpaid community work over 12 months. To pay compensation $22280
88. Proven
Melbourne Magistrates Court 26 October 2005 Breach of suspended sentence order
89. Burglary
90.
91. Theft
92.
93. resist police
94.
refuse or fail to state name and address
Proven
With conviction, fined an aggregate of $1200
Sunshine Magistrates Court 8 July 2005 Theft With conviction, fined $400 Melbourne Magistrates Court 23 June 2005 Drive whilst disqualified (3 months)
Theft of a motor vehicle (2 charges)
95. deal property suspected
96. proceed of crime (2 charges)
97.
98. Theft
99.
100. use unregistered motor
101. vehicle – highway
102.
Drive whilst p.c.a .05% or above
103. Aggregate 1 month imprisonment. Concurrent.
104. sentence is wholly suspended
under section 27 of the Sentencing Act 1991, For 3 months
Convicted and a community based order for 18 months
Convicted and a community based order for 18 months. licence cancelled and disqualified for 16 months.
Melbourne Magistrates Court 23 June 2005 105. Deal property suspected proceed of crime
106.
107. go equipped to steal/cheat
108.
possess prohibited weapon without exemption/approval
109. Convicted and a community
based order for 18 months
Sunshine Magistrates Court 17 August 2004 110. Theft of a motor vehicle
(2 charges)
Drive whilst disqualified (2 charges)
Fraudulently alter/use identification
Go equipped to steal/cheat
111. On each charge:-
112. 6 months imprisonment.
113. concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991 for 12 months. Licence cancelled
and disqualified for 6 months
114. On each charge:
115. 3 months imprisonment.
116. concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991 for 12 months. Licence cancelled
and disqualified for 6 months
117. 1 month imprisonment.
118. concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991 for 12 months.
119.
120. 1 month imprisonment.
121. concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991 for 12 months
Melbourne Magistrates Court 4 March 2004 122. Drive whilst disqualified
123. (3 charges)
124.
125. theft of a motor vehicle (3 charges)
126.
127.
128.
129. Unlicensed driving (2 charges)
130.
131. go equipped to
132. steal/cheat (3 charges)
133.
134. possess property being proceeds of crime
135.
136. Burglary (5 charges)
137.
138. possess property being proceeds of crime (2 charges)
139.
handle/receive/retention stolen goods
140. theft (4 charges)
141.
142. Fail to answer Bail
Granted (4 charges)
Breach of suspended sentence order
143. On each charge:-
144. aggregate 9 months imprisonment. Period to be served part concurrently is 3 months. Effective total state term imposed is 1 year 3 months. Licence cancelled and disqualified for 6 months
145.
146. Aggregate 9 months imprisonment. Period to be served part concurrently is 3 months. Effective total state term imposed is 1 year 3 months
147.
148.
149.
150. Aggregate 9 months
imprisonment. Base sentence. effective total state term imposed is 1 year 3 months
151. Aggregate 3 months
152. imprisonment. Concurrent.
153. effective total state term
imposed is 1 year 3 months
Proven
Sunshine Magistrates Court 13 June 2001 Recklessly cause injury 154. 3 months imprisonment.
155. concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991 for 18 months
Sunshine Magistrates Court 13 June 2001 156. Assault police/person assisting police (2 charges)
157.
Exceed prescribed concentration 3hrs – breath
Fail to answer Bail. Granted
158. Aggregate 1 month
159. imprisonment. Concurrent.
160. sentence is wholly suspended
161. under section 27 of the Sentencing Act 1991 for 18 months
162.
163. 1 month imprisonment.
164. concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991 for 18 months. Licence cancelled
and disqualified for 30 months
With conviction, fined $200
Sunshine Magistrates Court 19 March 2001 Breach re 28/12/2000
light fire on total ban day
Breach of community based order. Order cancelled. Convicted and fined $750 as wytrwal, kristof Melbourne Magistrates Court 28 December 2000 Variation re 09/02/1998
light fire on total ban day
Variation of fines. Fines cancelled. Convicted community based order. To perform 38 hours unpaid community work as wytrwal, kristof Broadmeadows Magistrates Court 13 November 1998 Failure to comply with cbo
Breach re 30/09/1997
intentionally cause injury
165. With conviction, fined an aggregate of $400 with $50.50 statutory costs. Cbo cancelled
With conviction, fined an aggregate of $400 with $50.50 statutory costs
Williamstown Magistrates Court 9 February 1998 Light fire on total ban day Convicted and fined $750 as wytrwal, kristof Melbourne Magistrates Court 30 September 1997 Recklessly cause serious injury Convicted community based order for 12 months. To perform 130 hours unpaid community work. Broadmeadows Magistrates Court 18 September 1996 166. Possess drug of dependence
167.
use other drug of dependence
168. Both charges without conviction adjourned for 12 months as wytrwal, krzysztof Williamstown Magistrates Court 3 February 1995 Unlawful assault
Wilfully damage property
Convicted and fined $500
Convicted and fined $400. Heard ex-parte as wytpwal, chris
Sunshine Magistrates Court 27 October 1992 169. Imposition on
commonwealth
Without conviction. Discharged on entering recognizance self $250 to be on good behaviour for 6 months.
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