Wytrwal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2019] AATA 5830

Wytrwal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5830 (23 December 2019)

Division:GENERAL DIVISION

File Number:          2018/3647

Re:Krzysztof Wytrwal

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:23 December 2019

Date of written reasons:        14 January 2020

Place:Melbourne

The decision under review, being the decision of the Respondent dated 22 June 2018 not to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth), is set aside.

In substitution, the cancellation of the Applicant’s visa is revoked under section 501CA(4)(b)(ii) of that Act.

.....................[sgd].............................................

Senior Member D. J. Morris

Catchwords

MIGRATION – Mandatory cancellation of Class BF Transitional (Permanent) visa – refusal of delegate to revoke mandatory cancellation – applicant fails character test – Direction No. 79 – primary considerations – other considerations – any other reason – medical evidence – decision under review set aside and new decision substituted – written reasons provided

Legislation

Migration Act 1958 (Cth) s 499, 500, 501, 501CA

Migration Regulations 1994 (Cth) r 2.52

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Migration Act 1958 – direction made under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)

REASONS FOR DECISION

Senior Member D. J. Morris

14 January 2020

Background

1. The Applicant is a citizen of Poland. He was born in January 1971. He arrived in Australia in August 1984 aged 13 with his mother and siblings, coming to join his father who had already settled here. On 22 June 2017 his Class BF Transitional (Permanent) visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act). Mr Wytrwal was at that time serving a sentence of full-time imprisonment. On 22 June 2018 a delegate of the Respondent decided not to revoke the mandatory cancellation of Mr Wytrwal’s visa. He applied to this Tribunal to review that decision. The Tribunal conducted a review and affirmed the Minister’s decision on 17 September 2018. On 24 May 2019 His Honour Justice O’Bryan of the Federal Court of Australia made an order, by consent, remitting the matter to the Tribunal for determination according to law, on the basis that the Tribunal’s decision was affected by jurisdictional error.

2. The hearing was held on 20 November and 19 December 2019.  The Applicant was represented by Mr Ryan Kornhauser, of counsel, instructed by Refugee Legal.  He gave evidence and was cross-examined by Ms Rachel Noronha of Clayton Utz, representing the Respondent.  The Tribunal also heard evidence from Dr Nina Zimmerman, consultant forensic psychiatrist; Mr Andrew Wytrwal, brother of the Applicant; Ms Kasia Wytrwal and Ms Klaudia Wytrwal, his daughters; and Mrs Rozalia Wytrwal, his mother.  The Tribunal appreciates the assistance of an interpreter in the Polish language in relation to the evidence of Mrs Wytrwal.

3. The Applicant submitted a Statement of Facts, Issues and Contentions dated 30 October 2019.  The Respondent submitted a Statement of Facts, Issues and Contentions dated 6 November 2019.  On 13 November 2019 the Applicant lodged written Submissions in Reply, together with three Annexures: Annexure 1 being a letter requesting a psychiatric risk assessment and mental health report to Dr Nina Zimmerman dated 25 October 2019; Annexure 2 being the report of Dr Zimmerman dated 12 November 2019; Annexure 3 being a signed International Health and Medical Services Opioid Substitution Treatment Program Agreement dated 8 May 2019.

4. The Tribunal also admitted into evidence: a bundle of documents described as an ‘Application Book’ (AB documents), lodged by the Respondent on 8 August 2019; a document titled ATLAS on Substance Use – Resources for the Prevention and Treatment of Substance Use Disorders – Country Profile: Poland, and a document titled ‘Poland Health system review’ by the European Observatory on Health Systems and Polices, both lodged by the Respondent on 6 November 2019 (Exhibit R1); report of Dr Nina Zimmerman dated 12 November 2019, lodged by the Applicant on 13 November 2019 (Exhibit A1); a statement of the Applicant dated 31 August 2018 (Exhibit A2); a Statement of Kasia Wytrwal dated 17 October 2019 (Exhibit A3); a Statement of Andrew Wytrwal (Exhibit A3); a Statement of Klaudia Wytrwal (Exhibit A4); a Statement of Rozalia Wytrwal (Exhibit A5).

5. On 23 December 2019 the Tribunal made a decision to set aside the decision under review and in substitution made a decision that the mandatory cancellation of the Applicant’s visa be revoked.  The Tribunal advised parties that written reasons would be provided.

   Legislative framework

6. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b)(ii) of the Act, there is another reason why the mandatory cancellation decision should be revoked. The Respondent accepted that the Applicant had made representations within the prescribed period.

7. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a)(i) of the Act, the person has a substantial criminal record as defined by section 501(7), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory (section 501(3A)(b)).

8. Relevantly, section 501(7) of the Act states:

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more; …

9. If the Tribunal finds that Mr Wytrwal fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In this exercise, the decision-maker should examine the factors for and against revoking the cancellation and if satisfied that the cancellation should be revoked, the decision-maker must act on that view (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, at [38]).

10. Before the Tribunal (AB1, p 22-36) was a National Police Certificate dated 1 July 2017 (the certificate). The certificate records that on 4 March 2004 the Applicant was sentenced to a term of imprisonment of 1 year and 3 months, and on 25 July 2008 he was sentenced to a term of imprisonment of 18 months. Counsel for the Applicant conceded that Mr Wytrwal fails the statutory character test set out in the Act.

11. On this evidence, the Tribunal is satisfied that Mr Wytrwal has a ‘substantial criminal record’ as defined in section 501(7)(c) of the Act because he has been sentenced to a term of imprisonment of 12 months or more.

12. On the facts of the convictions recorded against him and the sentences imposed in 2004 and 2008, the Tribunal finds that the Applicant fails the character test under section 501(3A)(a)(i) of the Act. As such, the remaining task is for the Tribunal to determine whether there is ‘another reason’ why the mandatory cancellation of the visa should be revoked.

    The Direction

13. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The Minister has made such a direction relevant to the Tribunal’s current task, Direction No. 79 (‘the Direction’). The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

14. Relevantly, the Direction includes the following principles at paragraph 6.3:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

15. In deciding whether or not to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’  Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’

16. The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.

    The Applicant’s offending history

17. Mr Wytrwal has an extensive criminal history.  The certificate records that he first appeared at Sunshine Magistrates’ Court in 1992 charged with the offence of Imposition on the Commonwealth.  A conviction was not recorded against him and he was placed on a good behaviour bond for six months.

18. In February 1995 he was convicted of the offences of Unlawful assault, and Wilfully damage property at Williamstown Magistrates’ Court, and was fined a total of $900.  In 1996 he was before Broadmeadows Magistrates’ Court faced with charges Possess drug of dependence and Use other drug of dependence.  Both of these charges were adjourned without conviction for 12 months.

19. On 30 September 1997 Mr Wytrwal was convicted at Melbourne Magistrates’ Court of the offence of Recklessly cause serious injury.  He was sentenced to a community based order for 12 months and required to perform 130 hours of community work.

20. On 9 February 1998 Mr Wytrwal was convicted of the offence of Light fire on total ban day at Williamstown Magistrates’ Court and fined $750.

21. On 13 November 1998 Mr Wytrwal was convicted before Broadmeadows Magistrates’ Court of the offence of Failure to comply with community based order (i.e. the order imposed on 30 September 1997).

22. Thereafter, the certificate records some 25 court appearances resulting in disclosable court outcome.  Mr Kornhauser acknowledged that his client has a significant criminal history for which he has received sentences of imprisonment, but drew the Tribunal’s attention to the fact that many of the terms of imprisonment to which Mr Wytrwal has been sentenced have been relatively short, sometimes counted in days.  He has received only one immediate custodial sentence with a duration of over 12 months. 

23. This was an aggregated sentence of one year three months that was imposed in March 2004 at Melbourne Magistrates’ Court for the following offences: Drive whilst disqualified (3 charges); Theft of a motor vehicle (3 charges); Unlicensed driving (2 charges); Go equipped to steal/cheat (3 charges); Possess property being proceeds of crime (3 charges); Burglary (5 charges); Handle/receive/retention of stolen goods; Theft (4 charges); Fail to answer bail granted (4 charges).  The offence of Breach of suspended sentence order was also found proven but no conviction recorded.

24. The Respondent submitted that, between October 1982 and June 2017, a period spanning 25 years, Mr Wytrwal has appeared in Court on over 25 separate occasions and has been found guilty or convicted of 200 criminal charges.

    The Applicant’s migration history

25. As mentioned above, Mr Wytrwal first arrived in Australia in 1984 aged 13. In July 2008 (AB1, p 110) he received a formal counselling letter from the (then) Department of Immigration and Citizenship that his criminal record had come to the attention of the Department and explaining to him the provisions in section 501 of the Act and that the Minister has the power to 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 he or she passes the character test.

26. Mr Wytrwal signed an acknowledgement slip confirming he had received this formal counselling letter.  However, after receiving this letter, he continued to commit criminal offences and faced the Courts in relation to them.

27. In October 2016 (AB1, p 103), Mr Wytrwal’s visa was cancelled under section 501(3A) of the Act. In November 2016, a delegate of the then Minister decided to revoke the mandatory cancellation of the visa after considering representations made by the Applicant, but made clear that this decision did not mean that his holding of a visa cannot be reconsidered again in the event of further criminal offending.

28. Mr Wytrwal was convicted of further offences in June 2017 and a delegate of the Respondent advised him that his visa had been cancelled under section 501(3A) of the Act. Subsequently a different delegate decided not to revoke the mandatory cancellation of the visa.

    Oral evidence of the Applicant

29. Mr Wytrwal gave evidence of coming to Australia with his mother, two brothers (one now deceased) and a sister.  His father, who has since passed away, had already arrived in this country.  The family first lived in Sydney and Mr Wytrwal attended primary school there before they all moved to Melbourne.  He said that on leaving school he worked as a bricklayer and as a manual labourer in a number of factories. 

30. Mr Wytrwal said that he ceased working after an acquired brain injury in 2004 following a car accident and some stomach surgery which made him unable to undertake the physical work he had been doing.  He told the Tribunal he was granted a disability support pension (DSP) on the basis of being incapacitated from working.  He, however, did undertake some voluntary work, for the Salvation Army for two or three days a week, helping in one of their shops.  He said this work was initiated as the result of a Court order, but he found that it suited him and after the Court obligation had been discharged, he started going into the shop in his spare time and assisting with receiving goods and sorting donated items.

31. Mr Wytrwal said that he had periods of homelessness, and lived in a Salvation Army hostel for a time.  When asked about the list of offences set out in the certificate, he said he ‘accepted it and feel shameful for it’.

32. In terms of some of the incidents of offending, Mr Wytrwal said that he had mental health black outs and sometimes woke up in police cells, so he pleaded guilty for charges laid against him and took responsibility.

33. Mr Wytrwal was asked whether he had caused harm to people and replied that he was not a violent person but in terms of the property offence convictions he did accept these caused harm and he was ‘sorry and feel very bad about it’.

34. In terms of his physical health, Mr Wytrwal said that at about the age of 18 he started having stomach problems.  He began vomiting blood after eating and was diagnosed with stomach ulcers.  He told the Tribunal that he had several operations over his adult life and his intestinal problems seemed to be getting worse, and that he ‘almost gave up’.  He said because of the constant pain he started taking drugs as a form of self-medication.

35. Mr Wytrwal said that one of the operations he had was botched and made his problems worse but in the end surgery was performed to totally remove his stomach and his large intestine was connected directly to his oesophagus in an operation conducted at Footscray Hospital.  He said that he has been placed on a special diet and must take vitamins for life.  He said that it took some weeks for the pain to subside completely and he felt part of this was in his mind, because he had been so used to constant pain since his late teen years.

36. Mr Wytrwal also told the Tribunal that he has been diagnosed with paranoid schizophrenia and a depression/anxiety disorder.  He also said that he has been placed on a methadone programme to combat his drug addiction.  Mr Wytrwal said that he has done some drug education rehabilitative programmes in prison and while in immigration detention and had undertaken some limited counselling.  He said that he engaged with a social worker in the past and found it helpful and planned to re-engage with a social worker if his visa is restored.

1. In terms of his accommodation if allowed to stay in Australia, Mr Wytrwal said that his plan was to live with his mother and brother at their home in Seddon and that he had made some inquiries about social workers nearby in Footscray, and that a general practitioner has been organised for him adjacent to a pharmacy where he can continue to have his supervised methadone doses.

2. In terms of the current state of his health, Mr Wytrwal said he has been in detention for more than two years and this has made him ‘wake up to myself’.  He said he had undertaken a cooking course in prison and had tried to establish a routine to remain occupied.

3. In terms of the 2008 formal counselling letter about his visa being liable for cancellation if his criminal offending continued, Mr Wytrwal said he did not remember that warning, but conceded he had signed the acknowledgement slip, so must have been aware of it at the time.  In terms of the 2016 cancellation of his visa, Mr Wytrwal said he did recall that and at that time was living by himself and did not have supports around him, or realise that he actually needed such supports.

4. In relation to his children, Mr Wytrwal said that he had three daughters: two adults, Klaudia and Kasia, and a minor daughter (who the Tribunal will describe in these reasons as ‘H’).  In terms of his two older daughters, Mr Wytrwal said he had a good relationship with both of them and he spoke regularly to both by telephone and when they visited him in detention.

5. In terms of his brothers, Mr Wytrwal said that he had one brother who had sadly died as the result of a drug overdose.  His surviving brother, Andrew, lives with his mother and he said he and his brother have a close relationship.  In terms of his mother, Mr Wytrwal said that she was of advanced age, had recently had eye and hip operations and that his brother acted as her carer.  He said if his visa was restored he could assist his mother, bear some of the carer duties and that would enable his brother to undertake other employment.

6. In terms of his minor daughter, H, Mr Wytrwal said that she lives with her mother on a farm in Northern Victoria.  He told the Tribunal that he had spoken to H last year (i.e. 2018) but not since, and that if he has the opportunity he planned to go to the Court to obtain some visitation rights so he can build a relationship with H, similar to that which he has with his other older children.  He said that he had some contact with H’s mother since he had been in detention, but that she had broken off contact and did not provide a reason.  Mr Wytrwal said that H and her mother had lived with him from her birth until she was around four years of age, when the mother had moved out with H.  Mr Wytrwal said that H had been taken to visit his mother, her grandmother, and her older stepsisters while has been in custody.

7. Mr Wytrwal said that he can understand basic Polish and speak basic words, and did so with his mother, but that there were different dialects in different parts of Poland.  He said that he spoke English to his brother but sometimes Polish to his mother, because that was the language she generally was more comfortable with.

8. Under cross-examination, Mr Wytrwal was asked about convictions in 1998 for intentionally causing injury and in 1997 for recklessly causing injury.  He said he remembered he had an argument but could not remember the details of the incidents.  In terms of one conviction for Assault police, Mr Wytrwal said that he remembered ‘accidentally hitting’ a policewoman and apologising to her, but that this charge was laid.

9. In terms of his drug use, Mr Wytrwal said he used cannabis sometimes but not on a regular basis; he started when he was aged 22 ‘because it was a good pain-killer’.  In terms of the burglary offences, he said he had burgled a number of shops but never a private residence.

10. In terms of the 2016 cancellation of his visa, Mr Wytrwal said he remembered being taken into immigration detention.  He was drawn to the fact that he wrote on that occasion to the Department, in his representations ‘I will not re-offend.  I have learned my lesson’, and yet went on to re-offend.  He said that when he wrote the statement it was true, but when he was released from immigration detention the police called on him and told him he had an historical charge outstanding and ‘my confidence went down; everything started…’.

11. In answer to direct questions from the Tribunal, Mr Wytrwal said he was granted DSP in 2004.  He said that he has been completely clean from drugs for more than two years.  He said that he had never used drugs ‘socially’ but as a means to reduce pain, and then became addicted.  He said his last stomach surgery was around 2016.  He said that he was on other drug-replacement treatment, suboxone (i.e. buprenomorphine), in detention but had been ‘stood over’ by other detainees who wanted the drug, and so changed to methadone in May 2019.  He agreed that he had previously been on a methadone programme around 2004 for a short period, in the community.

    Oral evidence of Dr Zimmerman

12. Dr Nina Zimmerman gave evidence by telephone to the Tribunal.  Dr Zimmerman confirmed that she had been instructed by Refugee Legal by way of a letter dated 25 October 2019 to prepare a risk assessment and mental health report in relation to the Applicant.  The report was before the Tribunal (Exhibit A1).

13. Dr Zimmerman said she interviewed Mr Wytrwal in detention in November 2019. In terms of his paranoid schizophrenia, Dr Zimmerman recorded in her report that she consulted with Dr Abu Bakr, the Applicant’s general practitioner.  Dr Bakr confirmed that Mr Wytrwal had been his patient for some years and noted a diagnosis of gastric ulcer disease.  Dr Bakr also noted a 2008 discharge summary from St Vincent’s Hospital confirming a diagnosis of paranoid schizophrenia and depression, and that Mr Wytrwal had been placed on antipsychotic medication that year and referred to a psychologist in 2016.

14. Dr Zimmerman reported regular contact by Mr Wytrwal with the public hospital mental health services: in 1994, 2000, 2004, 2007, 2008 and 2011, and that he had told her he had been hospitalised twice for his mental health conditions.

15. Dr Zimmerman recorded that Mr Wytrwal had undergone a total gastrectomy ‘approximately four years ago’ (i.e. 2015) at Footscray Hospital and that he told her it had ‘transformed his life as he is living without pain for the first time since his late teens’. 

16. Dr Zimmerman also recorded that a car accident had resulted in a loss of consciousness and Mr Wytrwal told her that he had been in a coma in the Alfred Hospital for a couple of days.  Dr Zimmerman also recorded a medical history of cognitive impairments including compromised attention, processing, memory, learning, poor planning and impulsivity.

17. Dr Zimmerman said that in her own examination she found no evidence of problems of attention or processing information and speculated that this testing may have been done when Mr Wytrwal was still affected by drug use. 

18. Dr Zimmerman administered an assessment tool, HCR-20, version 3, formulating a risk assessment.  She stated:

    Looking at Mr Wytrwal’s history and the nature of the difficulties he faces, it is my opinion that he does not pose a risk of serious violence or imminent violence.  He currently possesses a low risk of future violence or offending using the HCR-20 version 3.  All factors bar one relate to historical risk factors.  The assessment reveals a number of areas that need addressing in order to maintain a low risk of offending in the future.  These are risk factors that were pertinent to his past offending, and may impair his ability to use positive problem-solving strategies in the future.

19. In her oral evidence at the hearing, Dr Zimmerman said his current psychiatric condition was in full remission and was being adequately managed by antipsychotic medication.  She said he would need to continue the discipline of taking this medication, which could be prescribed by his general practitioner, but at present this was a stable illness.  Dr Zimmerman said that family and other social support would be absolutely crucial in maintaining this stability.

20. Dr Zimmerman said that it was clear to her that the gastric ulcer disease led to severe and chronic pain and this, in turn, led to Mr Wytrwal self-medicating with illicit and non-prescription drugs.  Dr Zimmerman said that drug use, especially the ingestion of methamphetamine, would exacerbate existing mental health conditions of a person.  She said there was no indication of illicit use of drugs in immigration detention and noted he was undertaking methadone-opioid replacement treatment, which was in her view appropriate.

21. Dr Zimmerman said that the HCR-20 risk assessment tool cannot return a result of ‘no risk’ of re-offending, because there was always some risk, but that this tool can evaluate risk.  She said that her assessment of Mr Wytrwal was that he had good insight into his illness and substance abuse and there was no indication of current risk factors.  Dr Zimmerman said that stable accommodation was an important risk factor and noted Mr Wytrwal had plans to go and live with his mother and brother and had realistic plans for the future, such as re-engaging with his voluntary work, added to which he was on methadone, which meant he was, in her view, less likely to return to substance abuse.

22. In terms of how the Applicant’s mental health would be affected if he was returned to Poland, Dr Zimmerman said she could not comment on the services available in Poland for persons with mental health conditions.  However she said given Mr Wytrwal has not lived in Poland since he was a child, he would be placed under major stress and, as he has only basic Polish language skills, he may find it hard to gain access to the services available and potentially would end up homeless.  She said that there was some risk of suicide, given Mr Wytrwal’s history of depression and suicidal ideation; it was her view that, if away from his family and off his medication, he would face a ‘perfect storm’.

23. Under cross-examination Dr Zimmerman was asked her view about what is different now in respect of Mr Wytrwal’s circumstances compared to when his visa was cancelled in 2016 and restored, given that he still went on to re-offend. She answered that not only has he been without gastric pain for a significant period, but the lengthy period in immigration detention has actually helped him maintain his drug abstinence.  Dr Zimmerman said this prolonged period of stability, in custody and then detention, has been positive in terms of the likelihood of relapse.

24. Dr Zimmerman said it was critical that Mr Wytrwal addresses risk factors by way of counselling, compliance with antipsychotic medication, stable accommodation, a social network and continuing to undertake methadone treatment for the time being. She commented that if even one of these preventative factors was not present, the risk of re-offending would increase.

    Oral evidence of Mr Andrew Wytrwal

25. Mr Andrew Wytrwal, the surviving brother of the Applicant, gave evidence.  He said that he was currently full-time carer for his mother and living with her, helping her with activities of daily living and, importantly, taking her regimen of medication.

26. Mr Andrew Wytrwal said that his brother’s stomach operation in 2016 had changed him.  The Applicant is now able to digest.  He said that, prior to 2017, he ‘was not a true brother to me’ and that he had ‘shut down’, but now they had resumed a brotherly relationship, which he attributed to his brother taking his medication.

27. Mr Andrew Wytrwal said his brother had told him of his strong desire to change and be with him and their ageing mother.  He said that his brother now knows the consequences if he ceases taking his medication and that he previously did not understand this.  He said he could not predict how his brother would cope if he is repatriated to Poland.

28. In terms of family in Poland, Mr Andrew Wytrwal said that they previously had one cousin there, who now lives in Germany, and they have an aged aunt who still resides in Poland.  He said, apart from family in Australia, their other relatives are now living in the USA, the United Kingdom and France.

29. In answer to direct question from the Tribunal, Mr Andrew Wytrwal said that unless his brother had been incarcerated and had weaned off drugs ‘he wouldn’t be alive’.  He said he was ‘one hundred per cent sure’ Mr Wytrwal would stay on his medication if in the community, outside of the controlled environment of immigration detention.  He was of the view that he now had a better understanding, appreciated also the effect it would have on their mother, and was more mature in his approach to tackling his problems.

30. Mr Andrew Wytrwal said his brother was not open to help before, and that he realised he would have to do more to ensure he complies with his medication regimen and regularly saw his counsellor and general practitioner; he said he currently ensures that his mother takes her medication and takes her to medical appointments, so it would be no hardship to assist his brother, in the same respect.

    Oral evidence of Mrs Rozalia Wytrwal

31. Mrs Wytrwal, mother of the Applicant, gave evidence.  She said she had been in Australia for some 35 years, emigrating to join her husband who had preceded them here from Poland. 

32. Mrs Wytrwal told the Tribunal that she had a three bedroom house with ample room for the Applicant to live with her and her other son, and that he had lived with her on occasions before.  She said she believed it would be very difficult if her son was returned to Poland because he does not know the country and would find it hard to obtain the medication he needs.  Mrs Wytrwal said that she also believed the Applicant could help her with certain household chores.

    Oral evidence of Ms Klaudia Wytrwal

33. Ms Klaudia Wytrwal, the oldest daughter of the Applicant, gave evidence.  She is aged 22.  She said she had a close relationship with her father but had not been aware of his mental health condition when younger.  She said her father was deeply affected by the death of his brother and became ‘sad and distant’. 

34. Ms Wytrwal said that she lives close to her grandmother and visited her often, and she was aware that the Applicant’s detention had had a significant effect on her grandmother’s health.

    Oral evidence of Ms Kasia Wytrwal

35. Ms Kasia Wytrwal, the second daughter of the Applicant, gave evidence.  She is aged 21.  She said she had always had a good relationship with her father but had grown closer to him after 2017.  She said she speaks to Mr Wytrwal once a week and was of the view that he had changed in the sense that he now had a mature understanding of his situation, and was committed to a better approach towards his life.

36. Ms Wytrwal said she believes that her father has a greater understanding of what help he needs, and what he himself must do to maintain his mental and physical health.

    Late submission

37. At the conclusion of the oral evidence of witnesses, Mr Kornhauser submitted to the Tribunal that the Applicant had received a recent message from his former partner with photographs of their daughter, H.  He asked if the Applicant could be recalled to give evidence.

38. Ms Noronha objected that this was new information which was not contained in the written statements before the Tribunal and could not be brought forward by the Applicant because of the provisions of section 500(6H) and 500(6J) of the Act.

39. The Tribunal asked Mr Kornhauser whether this apparent new information would change the sentiment expressed in Mr Wytrwal’s written statement of 29 November 2019 (Exhibit A2) which states:

    My eleven-year-old daughter [H] is not in contact with me.  I know she wants to see me but her mother is not letting her see me.  If I am released, I want to try and make an agreement with her mother and if this is not possible, I would try to get access to my daughter through the family court system.  I really want to be part of my daughter’s life and this is only possible if I am released.

    Mr Kornhauser agreed that this sentiment expressed by Mr Wytrwal in relation to his minor daughter remained the Applicant’s stated intention. 

40. The Tribunal refused to permit the Applicant to be recalled or for this information to be tendered, because of the statutory preclusion of the presentation of such material in sections 500(6H) and 500(6L) of the Act unless two business days’ notice had been given to the Respondent. However, the Tribunal did adjourn the hearing to allow Ms Noronha to obtain instructions from the Respondent about whether it might change any submissions the Minister would make. Ms Noronha later advised that it did not change the Minister’s stated written submission that it was in the best interests of the Applicant’s minor daughter for the Applicant to remain in Australia.

    Consideration of the relevant provisions in Direction No. 79

    Primary consideration – Protection of the Australian community (paragraph 13.1)

41. The Tribunal must give consideration 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.  Decision-makers must also give consideration to the nature and seriousness of the person’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the conduct

42. Without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.  Mr Wytrwal’s offending history, as set out above and in the documents to which the Tribunal had regard, is both long and melancholy.  There are a number of assault offences, but the vast majority of his offending relates to driving offences, property offences and some drug offences. 

43. The Courts have attempted to deal with Mr Wytrwal’s offending proportionately.  Initially, he was placed on a variety of Court-imposed bonds and orders, and given suspended sentences and fines.  When he was given custodial offences, they were generally of short duration until the offending in 2004, when he received a prison term of more than a year.

44. It is clear from the certificate that Mr Wytrwal’s offending has been frequent, but it would be also reasonable to accept the submission from his counsel that there has been no particular trend of increasing seriousness.  There clearly has been a cumulative effect of repeated offending, and blithe disregard for the sanctions imposed by the Courts.

45. This part of the Direction requires the Tribunal to have regard to whether there has been re-offending after the non-citizen has been warned or otherwise made aware of the consequences in writing in regard to his immigration status.  That is certainly the case here.  Mr Wytrwal received a formal warning letter in 2008 and his visa was actually cancelled in 2016, and then restored.  That he failed to take stock after these actions by the Department is very serious indeed.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

46. The Tribunal must consider the nature of harm to individuals or the community if the person engages in further criminal conduct.  In terms of the likely nature of offences Mr Wytrwal would commit, given his criminal history, they are very likely to be property offences where there may not be physical harm, but there would be financial detriment and harm to others, or driving offences, which would impose a general risk to other road users.

47. The Tribunal does note that, in terms of the drug offences, there is no history of Mr Wytrwal being involved in drug dealing.  His drug offences have been limited to possession.  Nevertheless, there is a clear correlation between his drug addiction and his need to fund that habit, which led to the theft, burglary and related crimes.

1. The Tribunal is required, by paragraph 8(2) of the Direction, in applying primary and other considerations to give evidence and information from independent and authoritative sources appropriate weight.  In this regard, Dr Zimmerman’s clinical assessment of Mr Wytrwal is very significant.  She had access to his medical records and the opportunity to talk directly to his treating general practitioner.  Dr Zimmerman concluded that Mr Wytrwal had a ‘low’ risk of re-offending after applying the HCR-20 tool, but the Tribunal notes that measure is focussed on violent offending, and in this assessment the Tribunal must consider any offending, not just offences of violence.

2. However, it is significant in this case that Dr Zimmerman’s firm conclusion was that the Applicant’s gastric condition led directly to his self-medication on illicit drugs, which developed into an addiction, and that his drug addiction also played into his existing psychiatric condition. 

3. The Tribunal is satisfied that the full gastrectomy performed on Mr Wytrwal is an important factor in assessing his risk of re-offending.  On the evidence before me, I am satisfied that chronic and significant pain from the age of 18 in 1988 until 2015 was a powerful driver in much of the criminal and anti-social behaviour of the Applicant.  I am also satisfied that his abstinence from illicit drug use for close to three years, somewhat ironically assisted by his immigration detention, has given an illustration to others that he is able to overcome his addiction and, importantly, to him that he can beat it.

4. I do not reach the level of satisfaction to say that I am confident that Mr Wytrwal will not re-offend, if permitted to stay in Australia, but provided he maintains his medication and social supports and accommodation, I accept Dr Zimmerman’s professional opinion that there is a low risk of re-offending, and I find that is a risk in this particular circumstance that is tolerable.

5. On balance, I find that this primary consideration weighs against the restoration of the visa because of the extensive criminal history, but that weight is not heavy, given the significant medical evidence before me linking his criminal conduct with his health, and that his health is now vastly improved.

   Primary consideration – Best interests of minor children in Australia affected by the decision (paragraph 13.2)

6. The Applicant has three daughters, but the Direction sets out at paragraph 13.2(2) that this consideration applies only if the child is under 18 years of age at the time when the decision to revoke, or not revoke, the mandatory cancellation of the visa is made.

7. H is the relevant child in this consideration.  Mr Andrew Wytrwal told the Tribunal in evidence that he has one daughter of his own, the Applicant’s niece, but she has attained the age of 18.

8. The Tribunal gives less weight to this consideration where there have been long periods of absence of contact between the non-citizen and the child.  It was uncontested that H lived with the Applicant from her birth to around the age of four.  There was then broken contact, but some periodic contact.  There was evidence before the Tribunal that H and her mother have visited H’s grandmother and her stepsisters since Mr Wytrwal has been in prison or in detention.

9. The Tribunal is prepared to accept that Mr Wytrwal has a genuine desire to re-establish contact with H’s mother, in the hope that he might gain some visitation rights to see H.  He did not say to the Tribunal that he would seek joint custody if he is allowed to remain in Australia.  There was evidence that H’s mother at one time took out a restraining order in relation to Mr Wytrwal, but there is no evidence that this related to his conduct in relation to his daughter.

10. The Tribunal on balance finds that this primary consideration weighs in favour of restoring the visa, but accepts the Respondent’s submissions that this weight is tempered by the length of absence in contact, part of which was not entirely of the Applicant’s making, and by the fact that the views of H and her mother are not known.

    Primary consideration – Expectations of the Australian community (paragraph 13.3)

11. The Direction records that the Australian community expects non-citizens to obey Australian laws while in Australia.  This is no different from what is expected of citizens.  The Direction also goes on to say that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the person should not hold a visa.  Decision-makers are obliged to have due regard to the Government’s views in this respect.

12. The recent Full Federal Court decision in FYBR v Minister for Home Affairs [2019] FCAFC 185 made clear that this is a ‘deeming’ provision on what the Government stipulates are the expectations of the Australian community, upholding the judgment of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 where Her Honour stated it is not for a decision-maker to make his or her own assessment of the community’s expectations.

13. The Tribunal finds that the Australian community would expect that Mr Wytrwal’s visa should not be restored.  He has a very extensive record of criminality which the Courts have attempted to deal with using tools to encourage rehabilitation, with little success.

14. However, having made this finding, the weight of this primary consideration is affected by other factors, including the evidence of Dr Zimmerman.  The Respondent submitted:

    In [the] light of the nature, seriousness and impact of the Applicant’s criminal offending and where there is no evidence from any independent and authoritative sources to demonstrate that the Applicant’s risk of recidivism is low, the Respondent contends that the Applicant does not meet the Australian community’s expectation that he will obey the laws of this country and that the Australian community’s expectations would be that the visa should be cancelled.

15. In fairness to the Respondent, this particular part of the Respondent’s written submissions was lodged with the Tribunal before Dr Zimmerman’s report was provided to the Minister and the Tribunal. 

16. Dr Zimmerman provided her report consistent with the guidelines laid down by the Tribunal’s President for persons giving expert evidence which make clear her obligation is principally to the Tribunal, not to the party who engaged her.  The Direction obliges me to give appropriate weight to her report, as I have set out above.  I do so, and find that her opinion carries significant weight in relation to the Tribunal’s assessment of this primary consideration, given the professional opinion about the causative factors in relation to the offending.

17. I therefore conclude that while this expectation weighs against the Applicant, that weight is not as heavy as it would be without the professional forensic psychiatric assessment of a low risk of him re-offending.

    Other consideration – International non-refoulement obligations (paragraph 14.1)

18. The Tribunal must have regard to Australia’s international obligations not to return a person to a place where the person may be exposed to a specific type of harm, as required by Australia’s international treaty obligations.

19. Mr Wytrwal would be returned to the country of his citizenship, Poland, if his visa is not restored.  Mr Kornhauser and Ms Noronha both submitted that this consideration was not engaged in Mr Wytrwal’s case.

20. There was no evidence before the Tribunal that this consideration is enlivened, so the Tribunal finds that it weighs neutrally.

    Other consideration – Strength, nature and duration of ties to Australia (paragraph 14.2)

21. Mr Kornhauser submitted that Mr Wytrwal has made positive contributions to Australia through his voluntary work and has strong familial relationships in Australia, while noting his positive contributions have been limited by his schizophrenia and other complex health problems.

22. Ms Noronha acknowledged that the Applicant has resided continually in Australia since arriving in 1984 but that his time in this country should be appropriately balanced in circumstances where his criminal offending began some eight years after his arrival and continued for some 25 years thereafter.

23. The Tribunal takes into account that Mr Wytrwal’s mother, brother and sister live in Australia, as do his three daughters (who are Australian citizens) and his former partner.  The Tribunal is satisfied by the written statements and oral evidence of the Applicant’s mother, brother and two older daughters that they have a close and loving relationship with Mr Wytrwal. 

24. The Tribunal notes that the Applicant has made some limited positive contribution through his periods of employment and through his voluntary work with the Salvation Army, but also that, while some of his unemployment periods have been occasioned by his offending and custodial sentences, he was also assessed by the relevant Australian Government agency as being unable to work because of impairment and granted a DSP, and that this should be taken into consideration.

25. The Direction stipulates (at paragraph 6.3(7)) that the length of time a non-citizen has been making a positive contribution to the Australian community and the consequence of a visa cancellation on minor children and other immediate family members in Australia are matters that should be taken into account.  I have dealt with the consequences to H above, but in terms of Mr Wytrwal’s other immediate family, his mother, brother, and two older children (and possibly his sister, but there is no information before the Tribunal in relation to her views), I find there would be a significant and detrimental impact upon each of them individually should the Applicant’s visa not be restored.

26. On balance, this other consideration weighs in favour of revoking the mandatory cancellation of the visa.

    Other consideration – Impact on Australian business interests (paragraph 14.3)

27. This consideration should only generally be given weight if non-revocation of a person’s visa cancellation would significantly compromise the delivery or a major project or important service in Australia.  Both parties submitted that this consideration was not engaged in Mr Wytrwal’s case.

28. The Tribunal finds that this other consideration weighs neutrally.

    Other consideration – impact on victims (paragraph 14.4)

29. The Direction requires the Tribunal to take this consideration into account where victims or the family members of victims are aware of the cancellation of the visa and have expressed a view.  Both parties submitted that this was not the case in relation to Mr Wytrwal.

30. The Tribunal finds that this other consideration weighs neutrally in this consideration.

    Other consideration – Extent of impediments if removed (paragraph 14.5)

31. The Direction requires the Tribunal to take into account the extent of any impediments the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of that country, taking into account the person’s age and health; any substantial language or cultural barriers and any social, medical and economic support available to them in that country.

32. The Applicant submitted that Polish labour law explicitly discriminates against persons diagnosed with schizophrenia, and gave examples that persons with such a diagnosis cannot be employed in the police, fire service, state security services or as border guards, or as teachers. 

33. The Respondent submitted that Mr Wytrwal may, as the Applicant contends, be excluded from certain categories of employment because of his mental health diagnosis, but submitted that he would not be excluded from all forms of employment, noting that he was previously a bricklayer and wool classer in Australia.

34. The Tribunal may accept these submissions, as far as they go, but there was no evidence that Mr Wytrwal is either qualified for any of the named occupations or that he aspires, if repatriated, to find work in any of them.  His background is, on his evidence, as a self-taught bricklayer.  He also has some experience in warehouse and other general factory work.  It was not clear to the Tribunal that Mr Wytrwal was a wool-classer, but the Tribunal accepts he worked for a wool-classing company.

35. The Tribunal is not convinced that this mental health diagnosis, by itself, would be a significant hamper on the Applicant in finding work.  What would be of greater challenge to him is his lack of physical robustness as a result of his radical intestinal surgery which, as he said in oral evidence, was one of the reasons he had to cease other physical work (and which, presumably, was a factor in the grant of his DSP).

36. The Respondent accepted that Mr Wytrwal suffers from paranoid schizophrenia, an acquired brain injury and side effects from his gastrectomy.  The Respondent also accepted that the Applicant left Poland aged 13 and while he did not speak fluent Polish, he did speak some of the language.

37. The Applicant submitted that Mr Wytrwal may not have the same access to medicaments for his health conditions in Poland than he would have in Australia.  The Tribunal accepts this may be the case, though noted the other written submissions from the Respondent on the Polish state health system.  However, the Tribunal notes that the yardstick in the Direction is not what is available to a non-citizen in Australia and what may (or may not) be available to the person in their home country, it is, correctly, would be available to him in the context of what is available to other citizens of Poland.  To that extent, I accept two significant impediments would be some language deficiencies (given the evidence of Mr Wytrwal that while he speaks some Polish, he was not fluent in the language and generally communicates, except with his mother, in English) and a lack of local knowledge about how to navigate the social welfare supports that are available, impediments which Dr Zimmerman stated could have a detrimental effect on a person with the mental health diagnosis of the Applicant.

38. The Respondent submitted that methadone treatment is available in Poland for detoxification of those with an opioid dependence and that there are public health services available to persons both with substance dependence and mental illnesses.

39. The Respondent conceded that, in the circumstances where Mr Wytrwal left Poland as a teenager and does not have social or familial support in that country, this consideration weighs in favour of revoking the mandatory cancellation of the visa.

40. The Tribunal concludes that, with Mr Wytrwal’s mental health and substance addiction background, he would be in a category of persons who might be particularly vulnerable to relapse if additional stresses are placed on him in such an environment, but does not conclude that Poland would not have adequate health support services to assist him.  The scope of what employment he might be able to do is also limited and the Tribunal does not consider that previous more physical work the Applicant did would now be possible with his significant abdominal surgery.  But that does not mean that there might not be other, lighter, work he could gainfully undertake.

41. However, on balance the Tribunal agrees with the Respondent and finds that this other consideration, in Mr Wytrwal’s particular case, weighs in favour of restoring his visa.

    SUMMARY AND CONCLUSION

42. In this matter the Tribunal has, as required by paragraph 13 of the Direction, taken the specific circumstances of this case into account.  Of the three primary considerations, two weigh against the Applicant, but neither of them especially heavily.  One primary consideration weighs in his favour.  Of the relevant other considerations, both weigh in his favour.  As I have said above, a major factor in considering this particular decision is the medical evidence relating to risk of re-offending. 

43. There is no doubt that Mr Wytrwal’s criminal behaviour lent an air of inevitability to the cancellation of this visa.  He knew of the risks, because he had not only been warned before of the likely immigration consequences, but his visa had actually been cancelled in the past and he had been detained.  The chain of causation between his physical condition, his drug taking and his criminality largely to support it is clear, as is the opinion of medical professionals.  He is vulnerable to returning to the abyss of drug dependence if he falters in his medication, with the inevitable consequences to his family and his status in Australia. 

44. However in this assessment, the Tribunal has come to the carefully considered conclusion that, provided he adheres (as he says he will) to his new lifelong obligation to antipsychotic treatment and other medication for his gastric condition, and continues to take medical advice in relation to his detoxification, there is no reason why he should re-offend.  He has a minor daughter to re-establish contact with, and other children and family members who clearly stand ready to support him.  His future is now squarely in his own hands.

45. The Tribunal finds that there is another reason, as provided for in section 501CA(4)(b)(ii) of the Act, why the mandatory cancellation of the Applicant’s visa should be revoked.

    DECISION

46. The decision under review, being the decision of the Respondent dated 22 June 2018 not to revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth), is set aside.

47. In substitution, the cancellation of the Applicant’s visa is revoked under section 501CA(b)(ii) of that Act.

I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.....................[sgd]..........................................

Associate

Dated: 14 January 2020

Date of hearing:

20 November, 19 December 2019

Counsel for the Applicant:

Solicitors for the Applicant

Mr R. Kornhauser

Refugee Legal

131.    Advocate for the Respondent:

Ms R. Noronha

132.    Solicitors for the Respondent:

Clayton Utz