XHKD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2948
•12 August 2021
XHKD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2948 (12 August 2021)
Division:GENERAL DIVISION
File Number: 2020/0985
Re:XHKD
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:12 August 2021
Place:Melbourne
The Tribunal, under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, affirms the decision under review.
.......................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – where applicant has been refused a protection (class XA subclass 866) visa – applicant is citizen of Afghanistan – where the delegate of Minister accepts applicant engages Australia’s protection obligations – criminal record – has the applicant been convicted by a final judgment of a particularly serious crime – what is a ‘particularly serious crime’ – if so, is applicant a ‘danger to the community’ – consideration of relevant factors – seriousness and nature of offending – mitigating or aggravating circumstances – the period of offending – risk of re-offending – decision under review is affirmed
PRACTICE AND PROCEDURE – where applicant unable to give evidence owing to mental health conditions – where Federal Court has appointed litigation representative of applicant in separate contemporary proceedings – where applicant’s legal representatives request Tribunal to appoint guardian ad litem – consideration of request – Tribunal asks psychiatrist or clinical psychologist to provide written answers to stipulated questions – where response indicates lack of ability of applicant to instruct, to understand nature of proceedings and to provide factual and rational responses to questions – inquiry as to whether applicant has guardian appointed under state legislation – Tribunal decides not necessary to appoint guardian ad litem – sufficient that litigation representative in separate proceedings able to make representations direct to Tribunal and for applicant to be represented provided Tribunal satisfied they acting in interests of applicant
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 33, 33A, 37, 38AA
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Federal Court Rules 2011 (Cth), r 9.63
Guardianship Act 1987 (NSW)
Migration Act 1958 (Cth), ss 5, 5H, 5M, 35, 36, 501KMigration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Cases
Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 263
DOB18 v Minister for Home Affairs (2019) 269 FCR 636
EWV20 as litigation representative for AFF20 v Minister for Home Affairs [2020] FCA 1696
EWV20 as litigation representative for AFF20 v Minister for Home Affairs (No 3)[2021] FCA 866
FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Re: [2021] AATA 1513
Hansford v His Honour Judge Neesham [1995] 2 VR 233
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Klewers v National Disability Insurance Agency [2020] FCA
Klewers and National Disability Insurance Agency, Re: [2019] AATA 4974
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; 209 CLR 533
Sullivan v Civil Aviation Authority [2014] FCAFC 93
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060
WKCG and Minister for Immigration and Citizenship, Re: [2009] AATA 512
Yousefi v Immigration and Naturalization Service 250 F.3rd 318 (4th Cir. 2001)Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (as later amended), Art. 33Parliament of Australia – House of Representatives – Canberra - Explanatory Memorandum to Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill
REASONS FOR DECISION
Senior Member D. J. Morris
12 August 2021
BACKGROUND AND INTRODUCTION
Australia is a signatory to the 1951 Convention Relating to the Status of Refugees (‘the Convention’). Article 33 of the Convention states:
Article 33 prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
This Article in the Convention means that a refugee may be returned to a place where Australia has accepted the person has a well-founded fear of persecution and is therefore owed protection under the Convention if, having been convicted of a final judgement of a ‘particularly serious crime’, the person is on reasonable grounds found to be a danger to the country of refuge.
Before the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 was enacted, a refugee refused a protection visa based on Article 33(2) of the Convention could seek merits review of such a decision. The interpretation of the Convention followed the usual principles of legislative interpretation. The 2014 amending Act changed the Migration Act 1958 (‘the Act’) by inserting section 36(1C). When the 2014 Act was introduced into the House of Representatives, the Explanatory Memorandum tabled by the Minister stated, at paragraph 1235, that the new clause 36(1C) proposed to be inserted into the Act is a criterion that excludes a refugee from the grant of a protection visa.
Paragraph 1236 of the Explanatory Memorandum went on to state:
New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention. As such, a person who is captured by new subsection 36(1C) will not engage Australia’s non-refoulement obligations under the Refugees Convention or for the purposes of the new statutory framework relating to refugees.
After the 2014 amendments, section 36 of the Act relevantly provides:
Protection visas – criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) Both of the criteria in subsections (1B) and (1C); and
(b) At least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
1)
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b) see section 5M.
Section 5M of the Act reads:
Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a)a serious Australian offence; or
(b)a serious foreign offence.
(Emphasis added.)
There is no evidence that XHKD has committed a ‘serious foreign offence’, so part (b) of the definition above is not relevant. Section 5 of the Act is the definitions clause and it defines ‘serious Australian offence’ as follows:
“serious Australian offence” means an offence against a law in force in Australia, where:
The offence:
(i)Involves violence against a person; or
(ii)Is a serious drug offence; or
(iii)Involves serious damage to property; or
(iv)Is an offence against section 197A or 197B (offences relating to immigration detention); and
The offence is punishable by:
(i)Imprisonment for life; or
(ii)Imprisonment for a fixed term of not less than 3 years; or
(iii)Imprisonment for a maximum term of not less than 3 years.
This therefore provides the context for the matter brought to the Tribunal for review.
MIGRATION BACKGROUND
In this matter the Tribunal is considering the refusal of a protection visa. Section 501K of the Act prohibits the publication of any information that may identify the Applicant or any relative or other dependent of the Applicant. He will be known by the anonym ‘XHKD’ and the identity of other members of his family who are referred to will be anonymised. The anonym will be inserted into quoted documents that mention his name.
The brief migration background of XHKD is as follows. He was born in 1991 in the Islamic Republic of Afghanistan and is a citizen of that country. In April 2005, he was granted a Subclass 101 (Child-Migrant) visa off-shore and he arrived in Australia in June 2005. His parents, together with a younger brother and younger sister, had already emigrated and his mother was his visa sponsor.
XHKD has a significant criminal record in Australia. In November 2015, his visa was cancelled by the Minister under section 501(6)(a) of the Act. That decision was set aside by the Federal Court of Australia. A further decision to cancel the visa was also made, which was also set aside. An appeal against a third decision to cancel XHKD’s visa was dismissed by the Federal Court of Australia on 29 July 2021.
On 28 March 2018, XHKD applied for a protection visa. A delegate of the Minister found that XHKD did not met the criteria in sections 35(2)(a) or (aa) of the Act. The Applicant sought review of that decision before the Tribunal (differently constituted). On 22 February 2019, the Tribunal remitted the matter to the Minister with a direction that the Applicant meets the definition of a refugee within the meaning of section 5H(1) of the Act.
On remittal, on 14 January 2020, a delegate of the Minister decided to refuse the application on the basis that section 36(1C) of the Act was not met. XHKD was notified of this decision on 14 January 2020 and he lodged the present application for a review of the decision on 20 January 2020. It is this decision that is before the Tribunal.
PROCEDURAL MATTER – THE CAPACITY OF THE APPLICANT
Before the hearing, there were interlocutory directions hearings to consider the capacity of XHKD to provide instructions to his legal representatives, owing to him suffering significant mental health conditions. Submissions were put that the Tribunal should consider appointing a person akin to a ‘litigation guardian’ in these proceedings. The representative of XHKD referred to the interlocutory decision of Griffith J in EWV20 as litigation representative for AFF20 v Minister for Home Affairs [2021] FCA 272 (‘AFF20’). This relates to the Applicant’s separate proceedings before the Federal Court in the judicial review of the cancellation of his subclass 101 visa.
In AFF20, His Honour considered an application that the Court order the appointment of a litigation representative on behalf of the Applicant under rule 9.63 of the Federal Court Rules 2011, on the basis that the Applicant is currently under a legal incapacity. The Court considered a report provided by a clinical and forensic psychologist, Dr Emily Kwok, who assessed the Applicant on 14 November 2020.
In summary, Dr Kwok was of the opinion that the Applicant was psychotic, and his symptoms meet the criteria for schizophrenia as defined by the Diagnostic and Statistical Manual of Mental Disorders (‘DSM-5’). In addition, she was of the view that it is likely that post-traumatic stress disorder (‘PTSD’) still affected the Applicant. Dr Kwok described the Applicant’s psychological condition as vulnerable and stated that his cognitive ability is impaired. She described the Applicant as “severely irrational and delusional”. Dr Kwok said his speech was incoherent, fragmented and did not follow logical reasoning, and that he does not currently have an ability to retain and process information. His Honour accepted Dr Kwok’s assessment and appointed the Applicant’s sister (with her consent) as his litigation representative, by order dated 24 November 2020.
At a directions hearing, Ms Ford, the solicitor for XHKD in these proceedings, provided the Tribunal with the background to these proceedings in the Federal Court and, at the request of the Tribunal, also provided the report of Dr Kwok to which His Honour refers. Ms Ford asked the Tribunal to consider appointing a guardian ad litem for XHKD.
In considering this request, the Tribunal considered the decision of DP Pascoe in Re:Klewers and National Disability Insurance Agency [2019] AATA 4974 (’Klewers’). The learned Deputy President considered whether section 33(1) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) was broad enough to encompass the appointment by the Tribunal of a guardian ad litem. In Mr Klewers’ case the applicant’s mother, who was representing him, had been separately declared a vexatious litigant by a Court and, in other proceedings before the New South Wales Civil and Administrative Tribunal (‘NCAT’), Mr Klewers had been represented by a guardian ad litem. DP Pascoe noted that NCAT has statutory power to appoint guardian ad litem under the Guardianship Act 1987 (NSW), but there is no equivalent specific power in the AAT Act. The learned Deputy President said, in his view, section 33(1)(a) of the AAT Act is sufficiently wide for the Tribunal to have an implied power to require the appointment of a guardian ad litem. DP Pascoe decided to hold Mr Klewers’ matter in abeyance pending the appointment of a guardian ad litem and observed how the matter highlighted the need for consideration as to whether this Tribunal should have similar powers to those currently available to NCAT.
Section 33(1) of the AAT Act relevantly provides:
In a proceeding before the Tribunal:
(i) The procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(ii) The proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(iii) The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
The Tribunal’s interlocutory decision in Klewers was considered by the Federal Court of Australia. In Klewers v National Disability Insurance Agency [2020] FCA 161, Perram J expressed the view, at [4] and [5] that the view of the Tribunal that section 33 provides sufficient power for the appointment of a guardian ad litem ‘may be contestable’, and cited a number of authorities that an inferior court or tribunal has such jurisdiction as is expressly given to it or which it must have for the effective exercise of its jurisdiction as a matter of necessary implication. His Honour, however, did not make any final pronouncement on whether the power to appoint a person akin to a guardian ad litem exists.
In respect of these proceedings, the Tribunal held a directions hearing on 18 December 2020 and subsequently wrote to XHKD’s lawyers directing that a psychiatrist or clinical psychologist provide the answer to four questions stipulated by me, in order for the Tribunal to ascertain for itself the Applicant’s capacity to give evidence and be cross-examined.
On 13 January 2021, Dr Kwok provided a psychologist report to XHKD’s lawyers which was then provided to the Tribunal. I will set out the questions and Dr Kwok’s written responses, with the name of the Applicant redacted and replaced with the anonym.
Question 1
Is XHKD currently capable of understanding the proceedings of the Tribunal and the purpose of the hearing of his application lodged on 20 January 2020?
Response
I have not administered a diagnostic measure of cognitive function or executive function on XHKD. My opinion on his cognitive competence is based on our interaction at the most recent interview where he showed impaired cognitive skills and executive function deficits associated with his psychiatric condition. He was also unable to construct coherent accounts of events and his accounts were marked by persistent and severe delusional thoughts. XHKD would likely be incapable of understanding the proceedings of the Tribunal or be sufficiently cognitively organised to follow the course of the proceedings. He lacks capacity to plan and organise his thoughts in order to understand the purpose of the hearing.
Question 2
If the answer to question 1 is ‘No’, will he be capable of understanding the proceedings in the next six months?
Response
I have assessed XHKD at different times. In July 2019, I commented that he demonstrated increased insight into his past offending behaviours and his mental health. Following this, he was held in segregation in prison for a number of months which contributed to a worsening of his psychotic symptoms. After I reassessed him in November 2020, I opined that he would likely be unable to provide instructions to his lawyers due to his cognitive incompetence and inability to understand the matter. Thus, XHKD fluctuates between capable and incapable, and his cognitive competence changes as a function of his unstable psychiatric condition. His mental health has at all times been quite poor.
Based on my most recent assessment, XHKD’s condition is moderate to severe and his psychotic symptoms are ongoing. Treatment for his condition is limited within a detention centre. It would be unlikely for him to be capable of understanding the proceedings in the next six months.
Question 3
If the answer to question 2 is ‘No’, based on your professional opinion, can you give a timeframe when he will be capable of understanding the proceedings of the Tribunal and the purpose of the hearing in relation to this matter?
Response
As noted above, XHKD’s cognitive competence fluctuates as a function of his unstable psychiatric condition. Individuals with schizophrenia can experience symptomatic improvements and regain a degree of insight and cognitive capacity with adequate treatment; however I cannot guarantee that he might not become unstable again. The current difficulty for XHKD is that he associates his time in detention with the delusional belief that people are conspiring “with the devil” to keep him detained which, in turn, maintains his psychotic symptoms. With limited treatment options in the detention centre, I cannot give a timeframe for when XHKD will be capable of understanding the proceedings of the Tribunal and the purpose of the hearing.
Question 4
Is XHKD currently able to answer questions before the Tribunal in a truthful, rational and factual manner, and to be cross-examined on answers he gives?
Response
XHKD presented as severely irrational and delusional, with heightened anxiety and diminished memory. His speech was incoherent, fragmented and did not follow logical reasoning. He would be unable to answer questions, or be cross-examined, before the Tribunal in a rational and factual manner. There is no indication that XHKD was deliberately untruthful in his responses to questioning.
Question 5
If the answer to question 4 is ‘No’, when, based on your professional opinion, will he be so able?
Response
Please refer to my response [in response to question 3]. XHKD’s cognitive competence fluctuates, therefore, I cannot provide a timeframe for when he may be able to answer questions or be cross-examined before the Tribunal, nor can I guarantee that his ability to do so will not change.
The Tribunal also asked Ms Ford to ascertain whether XHKD had a guardian appointed under State legislation. Ms Ford made inquiries and advised the Tribunal he has not.
Consideration
As was the approach taken by DP Pascoe in Klewers, I have had regard to the objectives of the Tribunal set out in section 2A of the AAT Act. They require the Tribunal to pursue the objective of providing a mechanism of review that is, inter alia, accessible, fair and quick. I echo the view of DP Pascoe that it would be desirable for the AAT Act to include statutory provisions permitting the appointment of a person as representative of an applicant in a case where the medical evidence points to the inability of that person to provide instructions or answer questions themselves. I note the learned Deputy President decided on a cautious pathway to await the appointment of a guardian ad litem in Mr Klewers’ case.
In the absence of specific provisions in the AAT Act or regulations, I am not satisfied that section 33, on its face, provides the architecture for me to appoint a person akin to guardian ad litem. While section 33 does provide broad powers (see, for example the commentary in Sullivan v Civil Aviation Authority [2014] FCAFC 93, at [88]), I contrast this particular question with the fact that Griffiths J in appointing a litigation representative for the Applicant was able to act in accordance with specific powers given to him by the Rules of the Federal Court, which are a legislative instrument. There is no equivalent statutory provision in the AAT Act, nor in the regulations made under the AAT Act.
However, the general approach of the Tribunal should not be to put unnecessary obstacles in front of applicants seeking merits review of a decision where an enactment permits such a review. Accessibility has always been a guiding light of the Tribunal’s function, even before this notion was inserted into the AAT Act as a mandatory principle. It is commonplace for applicants in proceedings before the Tribunal to represent themselves, or to have legal representatives represent them. Indeed, lay advocates, friends or family members often speak on behalf of applicants at hearings.
With this background, the Tribunal decided that, first, the Applicant was entitled, by virtue of section 2A of the AAT Act, to have his application for a merits review of the decision to refuse his application for a protection visa considered at an early opportunity. Second, the Tribunal was satisfied that XHKD has appointed legal representatives to appear on his behalf in relation to the refusal of his protection visa. Provided the Tribunal is satisfied that those representatives are acting on behalf of their client, I saw no need to consider further the appointment of any other person to represent XHKD, nor indeed to consider whether or not section 33 of the AAT Act is broad enough to permit such a course. I believe my approach is consistent with section 33(1)(b) of the AAT Act. In so doing, however, the Tribunal does take formal notice that the Applicant’s sister (called in these reasons Ms AY) has been appointed by the Federal Court as his litigation representative in separate proceedings, and notes that she gave evidence in this matter. This further satisfied me that the Applicant’s sister could advance any submissions on behalf of her brother, and in his best interests.
The Tribunal considers that, in the difficult circumstances presented by XHKD having a severe, if fluctuating, psychotic condition, this is a reasonable pathway to follow in satisfying his entitlement to have his application considered in a timely manner, while affording him procedural fairness.
HEARING
The hearing was held on 6 and 7 May 2021 by video, as permitted under section 33A of the AAT Act and consistent with the special measures practice direction issued by the President because of the current public health emergency. XHKD was represented by Mr John Maloney of Counsel, instructed by Mr Adam Zabrdac and Ms Carina Ford of Carina Ford Immigration Lawyers. Ms Ford was physically present with the Applicant at an Immigration Detention Centre (‘IDC’). The Respondent was represented by Mr Jonathan Barrington of Counsel, instructed by Mr Ned Rogers of The Australian Government Solicitor. The Tribunal appreciates the assistance of an interpreter in the Dari language for certain witnesses.
The Applicant’s legal representatives called the following witnesses who gave oral evidence: Ms AY, younger sister of the Applicant; Mrs AM, the mother of the Applicant; Dr Emily Kwok, clinical and forensic psychologist; Mr AF, the father of the Applicant; and Ms AP, the partner of the Applicant.
The Tribunal admitted into evidence documents submitted by the Respondent in compliance with sections 37 and 38AA of the AAT Act:
(a)Three volumes of Tribunal or ‘TD’ documents – Exhibit R1;
(b)One volume of supplementary, or ‘STD’ documents – Exhibit R2; and
(c)One volume of further supplementary, or ‘FSTD’ documents – Exhibit R3.
The Tribunal admitted into evidence the following documents tendered by the Applicant:
(d)Reports of Dr Emily Kwok, clinical and forensic psychologist –
(i) dated 16 March 2021 – Exhibit A1;
(ii) dated 13 January 2021 – Exhibit A2;
(iii) dated 8 December 2021 – Exhibit A3; and
(iv) dated 27 April 2021 – Exhibit A4.
(e)Statement of Mrs AM, dated 9 April 2021 – Exhibit A5;
(f)Statement of Mr AF, dated 9 April 2021 – Exhibit A6;
(g)Statement of Ms AY, dated 9 April 2021 – Exhibit A7;
(h)Wesley Health email to Ms AY- Exhibit A8;
(i)IHMS clinical records extracts 3 November 2020 to 29 March 2021 – Exhibit A9;
(j)IHMS Internal Referral Form dated 17 December 2020 – Exhibit A10;
(k)IHMS Northam Hospital Emergency Department Note dated 29 January 2021– Exhibit A11;
(l)IHMS Detained Medical Report Form dated 29 December 2020 – Exhibit A12;
(m)AFF20 v Minister for Home Affairs [2020] FCA 1696 – Exhibit A13;
(n)Statement of Mr MS, dated 26 April 2021 – Exhibit A14;
(o)Statement of Ms RS, dated 26 April 2021 – Exhibit A15;
(p)Statement of Ms AP, dated 3 May 2021 – Exhibit A16;
(q)Human Rights Council – Arbitrary detention, dated 28 January 2021 – Exhibit A17;
(r)Management Plan review, dated 13 January 2021 – Exhibit A18;
(s)BUPA Health card – Exhibit A19; and
(t)Australian Border Force Person of Interest document – Exhibit A20.
The Tribunal also had regard for the Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) and the Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’). After the hearing, both parties submitted written submissions, at the Tribunal’s direction, and the Applicant submitted a further written closing submission in reply. The Tribunal had regard for these documents as well.
THE APPLICANT’S GENERAL BACKGROUND
The ASFIC set out the Applicant’s personal background with the essential facts not being contested by the Respondent. XHKD was born in Kabul and is of Tajik ethnicity. His family suffered persecution from the Pashtun majority and the primarily Pashtun Taliban. XHKD’s family home was bombed, and his grandmother was killed. He witnessed his father being shot and taken away, his mother being beaten, and his aunt also being beaten to death by the Taliban in what XHKD described as “an indescribably viscous attack”. The ASFIC, in the Tribunal’s view correctly, characterised his early life as “traumatic and catastrophic.”
After their house was attacked, the family fled to Pakistan. They initially lived in a refugee camp. XHKD’s father eventually managed to reunite with them, after being detained and tortured by the Taliban. XHKD was subsequently kidnapped one day in Pakistan, while running an errand for his mother. The Department responsible for Immigration, in assessing his protection claims, described the phenomenon of ‘Bacha Bazi’, or ‘dancing boys’, a practice whereby young boys are sexually enslaved and trafficked by older men. XHKD’s evidence to the Department and to treating clinical psychologists that he was essentially kept hostage in a den for such purposes has been consistent.
XHKD was held for around three years and routinely subject to sexual violence, torture and threats of death. He witnessed other boys in the same circumstances, some of whom were killed. The Applicant sustained injuries consistent with a detailed account he gave to Department officers and accords with medical evidence of scarring on his body as reported by doctors who examined him in Australia.
His description of this dark period of his life was included in the ASFIC and made graphic reading. The Department has accepted that XHKD has injuries consistent with the account he gave in support of his application for a protection visa.
Eventually, XHKD managed to escape and he ultimately returned to the care of his grandparents. His parents, unable to find him and believing he had been killed, had in the meantime come to Australia as refugees with XHKD’s two siblings. All of them, together with three more siblings of XHKD who have been born here, are Australian citizens. XHKD began a process to prove his identity so he could reunite with his family. In June 2005, aged 14, he arrived in Australia. In June 2005, aged 14, he arrived in Australia, accompanied by an uncle. In June 2005, aged 14, he arrived in Australia, accompanied by an uncle.
He commenced schooling in Australia and there is conflicting evidence that he was either expelled before completing grade nine or studied up to grade ten. It would seem from what XHKD has told clinicians that he was suspended at school for attacking other students (it would appear likely driven by his hallucinations) and the school counsellor referred him to the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (‘STARTTS’). XHKD told a psychologist that he attended a TAFE institution after leaving school, however his study was interrupted by ‘escalating problems with substance abuse’ (TD, p 1035). XHKD did some sporadic work with his father, who worked as a painter.
THE APPLICANT’S OFFENDING HISTORY
XHKD’s offending history is set out in a National Police Certificate dated 11 July 2019 (TD, pp 1180-1181) and in sentencing remarks in the T documents.
In June 2008, XHKD was before a Local Court in New South Wales charged with the offence of Responsible Person/Custodian Not Disclose Driver’s Identity. He was fined $800 and disqualified from driving for a period of six months.
The following month before a different Local Court, XHKD was convicted of the offence of Learner Not Accompanied by Driver/Police Officer/Tester and fined $50. In relation to two other charges, Not Carry Licence and Fail to Display “L” On Car As Required, they were proven but no conviction was recorded, or further penalty imposed.
In August 2008, XHKD was before a Local Court and convicted of the offence of Drive Whilst Disqualified. He was released on a 12-month bond and his licence disqualified for 12 months from the end of 2008.
In November 2008, at the Children’s Court in New South Wales, XHKD was convicted of the offence of Take/detain person in company with intent to obtain advantage. He was placed on a control order for two years commencing in October 2008. The Tribunal understands that the control order required XHKD to be held in juvenile detention (TD, p 224).
In November 2009, also at the Children’s Court, XHKD was convicted of the following offences: Fire Firearm manner likely to injure persons/property; Fire firearm in or near public place; Possess loaded firearm in public place. For these three charges he was placed on a control order (i.e. juvenile detention) for two years commencing in October 2009. On the same day, the Applicant was convicted of the offence of Possess unauthorised firearm and placed on a 12-month control order (juvenile detention).
This document records that XHKD appeared before a Local Court in New South Wales in January 2015 in relation to a driving offence, Learner not accompanied by driver/police officer/tester. He was fined $500 and disqualified from holding a learner permit for three months. On the same day, he was fined $300 for the offence of Learner Driver Not Display “L” Plates as Required.
In December 2015, XHKD was before a Local Court and the charge of Drive motor vehicle during disqualification period was found proven, but no conviction was recorded, or further penalty imposed. In March 2016, he was convicted before a Local Court of the offence of Use offensive language in or near public place or school and fined $600.
In June 2017, XHKD pleaded guilty before the District Court of New South Wales of two offences, Use prohibited firearm and Acquire Prohibited Firearm – Subject Prohibition Order. In respect of the first offence, the Court imposed a head sentence of three years and seven months, and a non-parole period of one year and nine months. In respect of the second offence, XHKD was sentenced to two years and eight months, with a non-parole period of one year and six months. The following other offences were also taken into account in terms of the head sentence: Firearm found at premises – Subject to Prohibition Order; Acquire Ammunition Subject to Prohibition Order; Possess Unregistered Firearm – Prohibited Firearm; Possess Ammunition without holding Licence/Permit/Authority; Not Keep Firearm Safely – Prohibited Firearm.
XHKD’s then lawyers wrote (TD, p 224) that in March 2011 the Department issued a notice to XHKD that consideration was being given to cancelling his visa under section 501 of the Act. In September 2011, the Department decided not to cancel the visa but issued a formal warning to XHKD that his visa may be reconsidered for cancellation if he committed further offences or otherwise breached the character test in the future.
The February 2008 offence (the ‘kidnapping’)
The circumstances of the 2008 Court hearing where XHKD was convicted of the offence of Take/detain person in company with intent to obtain advantage were in the Children’s Court of New South Wales transcript before the Tribunal (TD, pp 248-265). Her Honour the sentencing Magistrate recorded that XHKD without consent took another person with the intend of obtaining an advantage, namely $5,000 and a motor vehicle. The finding of guilt was reached following a plea of not guilty and following a summary hearing of the matter. The Magistrate noted that the maximum penalty for the offence before the Court under section 86 of the Crimes Act 1900 (NSW) is 20 years’ imprisonment but the jurisdictional limit under the provisions of the Children (Criminal Proceedings) Act 1987 (NSW) is a control order for two years.
Outlining the circumstances of the offending, the Magistrate recorded that while in a moving car, XHKD loaded a gun in front of the victim (who had been made to enter the car with the Applicant and two others). XHKD also said words to the effect that if he did not get $5,000 and sign the car over to another named person “I’m going to shoot you in the head”. He pointed the gun at the victim. XHKD held the gun to the victim’s head and pulled back a lever on the top of the gun causing it to make a clicking sound. Her Honour recorded that the victim was afraid of being shot.
The Magistrate said that the use of an apparent weapon was extremely serious and highly aggravates the objective criminality of the offence. The offence was further aggravated by being committed by the offender in company, in this case with two young adults. Her Honour referred to there being some limited planning of the offence, in that XHKD and his co-accused had taken the victim back to a unit where it appeared the Applicant collected a gun and then made the victim enter the car.
The Magistrate noted that the only prior matters recorded against XHKD were unrelated traffic matters, and took account of the Applicant’s troubled childhood, his own apparent kidnapping and detention in Pakistan for some years and apparent torture and beating. In terms of likelihood of re-offending, a juvenile justice report before the Court wrote that XHKD may benefit from a mental health assessment but that he had apparently refused any intervention and counselling at that time. The Magistrate found the question of rehabilitation difficult to assess.
In deciding on the appropriate sentence, the Magistrate noted that XHKD was 16 years and nine and a half months at the time of the offence and so, while under the age of 18, he was not a young child in the colloquial sense of that term. She took the view that despite the fact that XHKD had no prior offending and his age at the time of the offence, only a control order (i.e. detention) was appropriate and noted that if there was no jurisdictional cap, ordinarily the circumstances of the particular offence would attract a non-parole period of four years. Her Honour imposed a two-year control order to be served in a juvenile detention centre.
The Magistrate said (TD, p 257):
Sentencing jurisdiction provides that in this court the court is capped in terms of any control order at two years, the maximum penalty for this offence is twenty years.
The matter, in terms of the length of the control order, was appealed to the District Court of New South Wales and in November 2009 a Judge of that Court confirmed the sentence imposed by the Children’s Court (TD, pp 266-267).
The 2009 Children’s Court appearance
The Tribunal had before it a transcript of the remarks of a Children’s Court Magistrate in November 2009 relating to four charges against XHKD: Fire firearm in manner likely to injure persons/property; Possess unauthorised firearm; Possess loaded firearm in public place; Fire firearm in or near public place. The Magistrate was critical of the matter remaining in the Children’s Court because of the jurisdictional limit. He said:
Whatever I do, effectively, that is the limit of this Court’s jurisdiction, yet this is someone who has taken a firearm into a public place. That of itself carries a maximum [penalty] of five years. [If] loaded, [the penalty rises to a maximum of…ten years. [If the weapon is fired, the maximum penalty rises to] ten years, [as it does if the act was likely to] injure persons. They are some of the most serious offences and they are specifically so because of the concern that the legislature has for persons in possession of firearms and ammunition and both together and then firing them.
In this case, XHKD had drawn a loaded gun and fired it into the air and into the ground. The offence had aggravating circumstances. It was committed in company and after a long bail, when XHKD was on a bond. The Magistrate accepted that the offence was planned.
The Magistrate said (TD, p 270):
In assessing criminality I would have thought at a minimum it is probably about halfway up the scale, which places the offence somewhere around the five year mark. Now he has no discount available to him at all, so that leaves the sentence at something like five years. So discounting that down to what is available in relation to each of those matters is a sentence in this jurisdiction that is limited by the two years. So while it should be a sentence of five, the nature of the beast is that it will be restricted to two…
The Magistrate imposed what he termed “the maximum control order available to me” of two years.
His Honour went on (TD, pp 270-271):
The sum total of the sentences is that he will spend one more year in custody for some of the most serious offences, and his age does not assist him. It is good that he is receiving treatment for his condition in custody, though it is quite clear from the nature of this offence, and [the psychiatrist’s] report, that he is capable of the most serious crimes and that they are crimes of violence. I should add that I have carefully considered the contents of [that] report and also the background report before the court in arriving at that decision.
XHKD appealed against this sentence, but the appeal was dismissed.
The 2012 offending and subsequent Special Hearing
In April 2012, XHKD was arrested for the offence of Fire a firearm at a dwelling house with reckless disregard for the safety of any person. In September 2013, he was found unfit to stand trial. In April 2014, XHKD was found on the evidence available to have committed the offence but was not convicted.
In respect of the 2012 arrest, the sentencing Judge noted that he had conducted a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) (‘NSW Act’) and made a finding that XHKD committed the offence and that this finding was a qualified finding of guilt made in the absence of a conviction except in regard to any victim wishing to claim compensation.
Section 23(1)(a) of the NSW Act states (TD, p 51) that:
The Court must indicate whether
(a) If the special hearing had been a normal trial of criminal proceedings against a person who is fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment; and
(b) Where the Court would have imposed such a sentence, must nominate a term in respect of that sentence, being the best estimate of the sentence the Court will have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.
The Judge recounted the events which led to XHKD’s arrest. He was in company with three others and they drove first to a fast-food restaurant and then to a residential street. They met up with another man who spoke to XHKD. They then drove to Parramatta and met under a bridge there with others, including XHKD’s brother. XHKD spoke to his brother. He then returned to the car and told the other three men that they were “going to be busy” but did not give details.
They then drove to another suburb. XHKD got out then returned to the car, saying that it was too busy, and they drove back to Parramatta. An hour later they returned to the location and the car was parked at XHKD’s direction. One of the car occupants got out and stood on the front lawn of a block of units. This person was armed with a Luger and fired 13 rounds in the direction of the units. The agreed facts before the Court describe that people in two units were present and forced to seek shelter. Fortunately, no one was injured.
His Honour said that he found that XHKD was part of a joint criminal enterprise. The basis of this finding was that the only reasonable inference from a series of connected facts was that he was part of the joint criminal enterprise that involved a co-accused firing a firearm at the dwelling house with reckless disregard for the safety of another person.
The Judge accepted that XHKD was not the overall mastermind of the shooting incident, but that he did liaise with others and then directed his three co-offenders in the manner. The Judge accepted XHKD was not the shooter.
The Judge referred to several detailed medical reports before the Court, including reports from psychiatrists and psychologists about XHKD. His Honour noted that two psychiatrists agreed that XHKD suffers from schizophrenia and Substance Use Disorder, and PTSD. It was these reports which founded the Court’s conclusion that the Applicant was unfit to stand trial.
The Judge said that, because of XHKD’s accepted mental health diagnoses, general deterrence is of less significance and XHKD’s moral culpability was less than for someone not labouring under his mental health conditions. The Judge further accepted that a custodial sentenced had already weighed more heavily on the Applicant because of his mental health conditions and that it was difficult for him to receive optimum treatment in prison. His Honour felt that continuing treatment would better occur outside the prison system but, in respect of protection of the community, the Judge said at (TD, p 59):
Given his record and the quite severe nature of his mental health condition, unless he is closely supervised and properly treated then he remains a high risk of re-offending in the future. His prospects of not re-offending and of rehabilitation will depend on how well he accepts and maintains appropriate treatment.
The Judge noted a psychiatric assessment as far back as May 2011 that XHKD presents a high risk of recidivism based on: (a) his vulnerability to influence; (b) his mental health issues; and (c) previous lack of adequate controls on his behaviour (TD, p 59).
The Judge quoted a passage of that 2011 report of Dr John Howard, psychologist (TD, p 58):
By the time [XHKD] arrived in Australia it appears he already had well established PTSD, psychotic symptoms, and mood dysregulation. He said he felt ‘out of it’ most of the time, and had no ‘idea of what was real or unreal’, did not know who he was nor ‘what are feelings’, and the auditory and olfactory hallucinations he had been experiencing had been joined by visual ones.
Dr Howard was of the view that should XHKD receive adequate support and supervision and appropriate mental health management and comply with a medication regimen and work to a clear and realistic plan, his risk of re-offending could be significantly lowered.
It was not submitted to the Court that, if the special hearing had been a normal trial, the matter could have been dealt with by a non-custodial sentence. In calculating the quantum of the sentence, His Honour noted at (TD, p 61) that XHKD had expressed no remorse for the serious crime and “from psychiatric reports it appears that he does not fully grasp the objective seriousness of the matter”.
The Judge declared under section 23 of the NSW Act that, had it been a normal trial, he would have set a custodial sentence, and that the limiting term was two years and three months.
The 2017 Court hearing
In June 2017, XHKD pleaded guilty to two firearms offences, outlined above, and four other firearms-related offences were taken into account by the Court. The circumstances of the offending were that in mid-2014 the police personally attended the Applicant and served him with a firearms prohibition order notice. It prohibited him from accessing firearms, firearm parts or ammunition.
In September 2015, XHKD had been at the family home alone after his parents and siblings had gone out for the day. About half an hour after they had left, a neighbour telephoned the police and said she had heard three gunshots and identified what she guessed from the direction of the sound was the relevant house. At the same time, another local resident contacted the police and said she had heard gunshots from the same street. Police attended the house and found a television being played loudly. XHKD told them he was watching a ‘war movie’ and laughed. They then asked to search the house. During the search, XHKD asked if he could use the bathroom. In the lavatory bowl the police found 16 unspent cartridges and two that had been fired. In the garden they found a firearm wrapped in plastic film, and a separate magazine, also wrapped in plastic film, buried ‘freshly’ in a garden bed.
The Judge took into account that the firearm was real and capable of being fired automatically. She said by its nature the weapon cannot be intended to be used for any lawful purpose, and had been fired in a residential area, at least once by the offender. She said it was an offence above the midrange of seriousness. The Judge noted that CCTV at the house had been turned off for a period, which indicated some planning involved in receiving the prohibited weapon from some outside source.
The Judge took account of the guilty pleas and considered medical reports before the Court on XHKD’s psychiatric history and conditions. Her Honour also took account that being in custody was more onerous for XHKD because of his mental health conditions. She said (at STD, p 1383):
The consideration of the offender’s mental health issues is complex in this matter. Due to the offender’s experiences with trauma he has mental health problems which led to dysfunction in his teens and were a pathway to drug abuse at a young age. Due to exacerbation of his PTSD he was seeking to self-medicate with methylamphetamine; his PTSD and schizophrenia predispose him to substance abuse. However, on the offender’s account he was to receive a financial gain in return for taking possession of the firearm, and the offender’s attempt to provide an innocent explanation for the reports of the gunfire, to the police, indicate a clarity of thought as to the wrongfulness of possessing and firing the weapon, as does the hiding of the weapon by the offender in the back garden.
I do not accept that the offenders’ mental health contributed to the commission of the offence in a material way, as such his moral culpability is not reduced by reason of his mental illness.
XHKD’S SUBSTANCE ABUSE
A submission (TD, p 86) from XHKD’s then lawyers to the Department recorded that from 2006 to 2008 the Applicant took illicit substances including cocaine, ecstasy and crystal methamphetamine, and that these illicit substances aggravated his mental health conditions.
A report from Dr Richard Furst, consultant forensic psychiatrist, dated 15 April 2017, prepared prior to sentencing. Dr Furst wrote (TD, p 798):
[XHKD] has a history of substance abuse, including abusing cocaine. He said he was using cocaine about 2-3 times weekly from the age of 15-16 years. He used MDMA every 3-4 weeks when going out to clubs.
He used ‘ice’ when released from custody in about October or November 2014, using about 0.2-0.3g at a time every 2-3 days. He used cocaine every 4 days or so. He used ‘Ecstasy’ at clubs every 1-4 weeks.
[XHKD] was referred for drug and alcohol counselling in Parramatta by Mr John Howard, a psychologist. He said he started using ‘ice’ about three months before his arrest on 28/09/15 prior to the offence in question before the Court.
He denied any issues with alcohol, cannabis or heroin.
He denied any recent drug use in custody.
He added, “I was like a sex addict. Ice. Cocaine. Pills in the past.”
In 2019, XHKD told Dr Kwok he was approached by drug users and drug dealers not long after arriving in Australia and told by them that drugs could help him cope with his psychotic symptoms. XHKD claimed that the severity of his substance abuse problem, along with his psychotic symptoms, worsened when he was attending TAFE (TD, p 1038).
ORAL EVIDENCE
Ms AY
Ms AY confirmed she was the younger sister of XHKD. She lives with their parents and is studying at university. She told the Tribunal she was aged four when she came to Australia and was aged seven when XHKD joined the family. She said she regarded him as a good brother but that their relationship was not as strong as it should have been because he has been in and out of gaol.
She said she developed more of an understanding of XHKD’s mental health difficulties in 2017 when he went to hospital; before that she said there were signs, but she was very young.
Ms AY said she had undertaken her own research on places that could help XHKD and whether he could be an in-patient on release from detention. She said she had spoken to Wesley Hospital in Ashfield and they had told her because they had limited places, he would be better to go to a larger hospital. She said her family now has a better understanding of her brother’s mental health needs.
Ms AY said that her mother is in regular, daily, contact with XHKD and she herself spoke to him sometimes by phone but not as often as she would like because of her university studies. She said that XHKD’s and his partner, Ms AP, had “been together for a few years. They have a very healthy relationship.”
Ms AY said she believed XHKD needed psychological treatment on release, and in her view as an in-patient. Ms AY said that her parents in 2019 had set up a special bank account to pay for XHKD’s medical care and that they had arranged BUPA health insurance with Ms AP.
Under cross-examination, Ms AY said she spoke to her brother, she estimated, about every second day. She said XHKD told her he wants to get treatment and then get married. She said he intends to live with the family in Sydney, in the family home. She said presently the house accommodates her parents, and most of her siblings except for the Applicant and another brother who is presently in custody (but who otherwise lives elsewhere).
Ms AY said she believed her mother had taken XHKD to medical appointments in the past, but she could not say what year or how often, but that it would have been before 2017.
Ms AY said she had not met Ms AP in person because she lives in Melbourne but that she had heard good things about her and XHKD had told her she is very supportive of him. Ms AY said the family took out BUPA health insurance but had cancelled it in relation to XHKD, but they would revive it if he is released into the community. Ms AY said that the family home has five bedrooms so some of her siblings must share.
Mrs AM
The mother of the Applicant gave evidence. She said when they were in Kabul, a Mujahideen rocket hit the room occupied by her mother-in-law and she was killed instantly. They moved to another part of the city and then the Taliban came and, after some incidents, including a case where her husband was taken off the street and beaten, life became very difficult. With her sister-in-law she established a home school at her house, but it was reported to the Taliban. They attacked the house and her sister-in-law was taken away and died in hospital. Mrs AM said she then took two of her children to Pakistan.
She said her children had witnessed the death of her mother-in-law first-hand and XHKD was particularly affected and kept having nightmares and being scared by noise.
Mrs AM said that her husband joined them in Pakistan. One day XHKD went out to get some bread but didn’t come back. She said they looked everywhere and wrote to the local newspaper to say he was missing: “We don’t really know what happened to him.”
Shortly after the family emigrated to Australia, Mrs AM said XHKD was found. She said he was initially happy but “there was some sort of unhappiness hidden in his face”. One morning she noticed his face was bruised and scratched and she noticed a CD player in the room had been broken. Mrs AM said XHKD told her that “someone told me to break it, so I did, and [they] told me to scratch my face”.
At school, Mrs AM said XHKD was suspicious of other students and that they wanted to hurt him. Teachers told her he was worried all the time, looking around and not paying attention and talking to himself, losing his temper easily.
Mrs AM said at the time they did not know what was wrong. She said she advised him to forget any experiences in Afghanistan and Pakistan, and XHKD told her it was difficult to forget it.
Mr Maloney asked Mrs AM whether it was after XHKD’s diagnoses by psychologists when he was in custody that they then realized what was wrong. Mrs AM replied: “We didn’t know and then talked to others and they said he was affected by a satanical ghost, and we should take him to a mullah and then he would get well.”
Mrs AM said in around 2009 after XHKD was diagnosed and assessed she realised he should go regularly to see the doctor and take his medication regularly so that he could get well.
Mrs AM said she had a good relationship with XHKD and called him every day, especially during the night. She said her view was that his mental health has got worse over the time she has been talking to him in detention, “when I do a videocall he is looking all around and talks to himself and goes off. Then he comes back and talks to me. His condition is not good. When I asked a question to him the other day, he responded to ‘another voice’, not to my question.”
Mrs AM said she thought XHKD would be much better at home because there would be family support. “I can take care of him and take him to medical professionals. We would be watchful and caring. Currently he is alone. He says he can’t sleep at night because he thinks someone is coming for him to hurt him. That is why he sleeps during the day.”
Mr Maloney pointed out that XHKD has lived at home in the past but has nonetheless committed offences. Mrs AM said: “Actually on a couple of occasions he has committed an offence. Every time we got more experience about what precautions need to be taken. He was taking drugs. We didn’t take him to the psychologist. We didn’t have a well-developed plan for him. This time will be different. I will personally support him.”
Mrs AM said that her husband had previously thought XHKD had some sort of ghost that entered his body and that they should go to the clergy and say prayers. She told the Tribunal: “My husband now realises it is a mental problem and we know how to try together to assist him. He will be fully supported by us.”
Mrs AM said that Ms AY plays an important part because of her better English as she can read medical reports and arrange appointments and organise professionals to help with XHKD’s condition.
Mr Maloney said that XHKD has not used drugs since being in prison and does not associate with criminals and asked Mrs AM if she believed both statements to be true. Mrs AM said: “Yes, because when he was in custody, he has had no relationship with these people who used to take drugs. His partner is helping him as well. He has disconnected with bad associates. I think his promise will be honoured. He told me drugs had made him worse and were not helpful and were injurious to him. That understanding will help him avoid those people.”
Under cross-examination, Mrs AM confirmed that XHKD was the oldest of her children. She said the next oldest son is currently in custody but usually lives with his partner around half an hour’s drive from their family home.
Mrs AM said when she talks to XHKD one of the things she asks him about is whether he is taking his medication. She said she believes he does because she sometimes hears IDC staff talking to him about it. She said XHKD frequently tells her he is hearing voices, and when she asks him a question (during a video call) he sometimes walks around and does not pay attention or answer her directly.
Mrs AM said XHKD wants to get treated and get married to Ms AP, who would move from Melbourne to Sydney. She said she has spoken to Ms AP on the phone and by videocalls but had not met her in person, yet. She believed Ms AP had been working as a real estate agent but that may have changed because of the pandemic.
Mrs AM confirmed that XHKD had always lived with her when in the community and that she had not known about his illicit drug use. She said she never saw him using drugs at home: “I didn’t recognise the effect of drugs if he was taking them. His eyes looked red. Even if he was taking, I didn’t realise.”
Mrs AM confirmed that she had written to the Department in 2011 (TD, p 593) saying that XHKD was young and suffering from an undiagnosed mental illness. She said she felt he did not recognise he had “some sort of mental problem. I was thinking he was visiting the doctor and the psychologist.”
In her 2011 letter Mrs AM said she would take XHKD to counselling. She said she remembered saying that, but then two things happened unexpectedly. Her mother had a stroke and she had to go to Afghanistan at short notice and then she fell pregnant and said she was not able to support XHKD in the way that he needed.
Mrs AM said: “There was a fear that if he took the medication himself, he might take it all at once. I used to give them to him. Sometimes he didn’t take them in time, and every irregularity was one of the causes. When I was in hospital, he wouldn’t accept medication from my husband. His friends were telling him to take drugs and not medication.” Mrs AM said XHKD either forgot to take the medication or threw it away.
Mrs AM said her husband did not take XHKD to counselling because people were telling her husband that there was a genie inside XHKD’s body, so she used to take him, not her husband.
Mr Barrington noted that in her 2011 statement (TD, p 541), Mrs AM had said that XHKD’s brother would be a bad influence on him and whether she felt that is still the case. She said “[XHKD’s brother] is saying we went the wrong way and we have to change ourselves and live our lives a better way, become totally different people than we used to be and follow the right path.”
Mrs AM said that in 2015 she took XHKD to their family general practitioner who prescribed medication for him. She said he was improving but then received a letter from the Department that he might be deported. “We didn’t realize he would go out with friends who told him to take drugs if he couldn’t sleep.”
Mrs AM said she did not know he was taking drugs at that time, but he later admitted it to her, and she said XHKD said to her: “That’s why the medication wasn’t effective, and I got worse.”
In answer to direct questions from the Tribunal, Mrs AM said that XHKD would live somewhere else after he and Ms AP married. She said: “They will not get married immediately. He needs to be treated and be in the hospital. When doctors say he is stable and can stand on his own feet he will get married. I can’t say how long it will be; it will depend on his recovery.”
Dr Emily Kwok
Dr Kwok gave evidence as an expert witness. Dr Kwok told the Tribunal she first assessed XHKD in June 2019 and provided a report (TD, pp 1029-1053) in which she concluded that the Applicant generally met the criteria for PTSD. Dr Kwok said PTSD can manifest after stress to the person or someone the person knows, either through direct experience or witnessing an event or series of events. Dr Kwok said it leads to intrusive symptoms such as flashbacks, nightmares, intrusive thoughts and it impairs functioning.
Dr Kwok said that XHKD’s schizophrenia may have been triggered by substance abuse or severe PTSD. Dr Kwok said schizophrenia brings psychotic symptoms such as hallucination, which can be auditory, visual or by smell.
Dr Kwok confirmed her clinical opinion that XHKD had long-term remitting conditions requiring treatment of both PTSD and schizophrenia. Dr Kwok said XHKD had reported that his drug use began as a means of self-medicating, and that substance abuse is likely to exacerbate his symptoms.
Dr Kwok said that in past years some of XHKD’s friends recognized he had a mental disorder and apparently gave him drugs and encouraged him in criminal activities. Mr Maloney asked Dr Kwok whether she identified a link between the Applicant’s mental disorder and illicit substance use. She responded that she did not assess him at that time, but his mental disorder was already severe, which can affect social connexions.
Dr Kwok said she had reviewed affidavits from family members and Ms AP. She said she had not spoken to any of the family since 2019 but agreed that family support for a person suffering from schizophrenia is very significant because they provide a safety net for the person.
Dr Kwok was asked to assume XHKD had not used illicit drugs since 2015 and asked if that would have a clinical significance. She responded that if a person abstained for six months, there was a good likelihood they would abstain for two years. Then there was a five-year marker of abstinence, and these general benchmarks were for a person in the community. Dr Kwok confirmed that in 2019 XHKD demonstrated support for treatment and expressed remorse for his past actions. She said a person acknowledging their treatment needs would reduce the likelihood of offending and increase the likelihood of addressing criminogenic needs.
Dr Kwok was asked by Mr Maloney about social media ‘posturing’ by XHKD. She responded that there did not seem to be a continuation of those posts after the Applicant found out he may be deported.
Referred to her December 2020 report, Dr Kwok confirmed she had identified in that report a decline in XHKD’s condition since 2019. She said: “In 2019, he was able to understand the need for help and remorse but in 2020 that insight was not present. He was unable to understand the reason for my assessment.” Dr Kwok said that in 2020 XHKD described to her ‘an arrangement with the devil’ and she did not believe he knew who she was.
Mr Maloney asked Dr Kwok if XHKD was capable of separating reality and delusions. She responded: “Not at the point I was speaking to him.”
Mr Maloney asked Dr Kwok whether she believed detention had exacerbated XHKD’s mental illnesses. Dr Kwok responded: “The worsening that had happened when he was in prison has not remitted.”
When asked whether she believed some of XHKD’s acute symptoms may subside if he was in the community, Dr Kwok responded: “If he receives treatment. The type of treatments he requires are unlikely to be available in detention.”
Dr Kwok confirmed that she had received various IHMS medical notes from XHKD’s time immigration detention up to December 2020, including some references to disciplinary incidents. Mr Maloney asked whether there was a connexion with the Applicant’s mental health. Dr Kwok responded: “When I interviewed him, he was unable to explain. When a person has an active psychosis, they are less able to control their behaviours and emotions.”
Dr Kwok agreed with a suggestion from counsel that some interactions with IDC staff may be interpreted by a person with XHKD’s symptomology as persecutory.
Mr Maloney asked Dr Kwok if she was aware that the Applicant’s previous offending was a function of his association with peers and co-offenders and whether XHKD’s mental illnesses affects his engagement. Dr Kwok responded: “Both. He cannot engage coherently. It [his mental health] may reduce the likelihood of being involved but it also impairs his ability to make decisions not to offend. It depends on how you look at it.”
When asked what stages of treatment she recommended XHKD undertake, Dr Kwok responded: “For a person with severe mental health conditions, the first period is in-patient in hospital for 2 to 5 weeks. Then a structured mental health team. GP. Community mental health team. Also, STARTTS recovery.”
Dr Kwok said she had spoken to XHKD’s father and sister about what was needed to be put in place. She said it is fair to say the support plan would be ‘highly intensive’ and XHKD may need a Community Treatment Order (‘CTO’) if he is non-compliant. Dr Kwok explained that a CTO could be sought by XHKD’s doctor if it was thought there was some risk of non-compliance, either on release or on release from hospital. She said that involuntary admission would be a last resort.
Mr Maloney asked whether Dr Kwok thought, in her opinion, that the plan set out for XHKD was sufficient. She responded: “I haven’t assessed him for six months so I would be guarded about making that statement.”
Under cross-examination, Dr Kwok confirmed she had seen the Applicant on three occasions over the last two years. She said she had witnessed a decline in his condition and a rise in psychotic symptoms. Mr Barrington asked her whether XHKD’s reported ‘devil’ hallucinations were command hallucinations. Dr Kwok said that a command hallucination tells a person to do something but XHKD had spoken about this in a general sense, not as a specific instruction for him to do anything.
Dr Kwok said based on her clinical observations XHKD’s hallucinations are more likely to be non-violent, but she was aware that when he was at school, the Applicant associated voices with aggressive acts. She said she did not observe command hallucinations in her 2020 assessment.
Dr Kwok said that XHKD told her he was taking medications, but the records suggest he may not have been taking them as instructed. She said she used the word ‘non-compliant’ because there were other things he was not doing, such as not attending appointments.
Mr Barrington asked what refusal to take medication suggests. Dr Kwok said it might show that the Applicant did not believe he had a mental illness. She said that future treatment would have to address impulsiveness and criminal traits: “If there has been nonadherence in the detention centre, he would need a structured plan in the community to ensure compliance. I do know he has missed appointments in the IDC.”
Mr Barrington asked Dr Kwok what was meant by the term ‘antisocial cognition’ and whether XHKD had shown signs of this. She responded: “It means that it is ok to commit crimes, or ok to hurt others. [He has shown signs] in his past history.”
Dr Kwok said that XHKD’s postings on social media would be evidence of antisocial cognition. She said it is treated by collective behavioural therapy, but this had not been requested in his plan, and she did not believe he has had regular psychological sessions to address this.
Dr Kwok confirmed that antisocial personality pattern was present in the Applicant and treatment for this is to find more harmless behaviours. She said there was no plan in relation to this because XHKD has not been in contact with a psychologist. She confirmed that his psychosis would have to be addressed first before other behavioural traits were addressed.
Mr Barrington said that there was an allegation that Ms AP tested positive for methamphetamine use when she visited XHKD in October 2018 and, if that were true, would it give her concerns. Dr Kwok said it would give her some concerns if XHKD’s partner was currently using.
Dr Kwok was asked what stresses the Applicant would face if released into the community. She said returning to the community itself could be stressful; as would: being with family; financial stress; employment; lack of prosocial interactions and time use.
Dr Kwok said when she first met XHKD’s family they did not show insight into his mental health conditions but since then they have exhibited a reasonable level of insight. She said substance abuse by XHKD was still a risk factor, as was poor impulse control. Dr Kwok said employment would not be a protective factor initially, because XHKD still needs treatment. She said stable accommodation and family support would be important. Dr Kwok said there was initially a lack of understanding in the family because XHKD’s mother was overseas and his father did not believe in mental illness. “After his second release, XHKD told me his family gave more support. I don’t think they had a full understanding even then. His father said he would give him work. I had to explain XHKD needed to engage in treatment.”
In examination in reply, Dr Kwok agreed with Mr Maloney’s suggestion to her that XHKD’s resistance to treatment has been because he cannot recognise the need for medication because of his delusional belief, not because he is resistant by personality.
Dr Kwok agreed that treatment in detention is extremely limited and could have an exacerbating effect on XHKD’s diagnosed mental disorders.
Mr AF
The Applicant’s father gave evidence. He said he has been running his own painting business for about four years. XHKD and his brother had been working for their father for a time and the business was then doing well.
Mr AF said he had not wanted to tell his wife that XHKD had been waking in the night and talking after he had reunited with them in Australia after his traumatic experiences in Pakistan, because it would have upset her too much. Later, he said, they realized XHKD had mental illnesses and needed to see the doctor and other health professionals. He said: “I thought it was an evil spirit, which was not true.”
Mr AF said that now they know how to help and are in a position to help, they could take him to appointments with health professionals and help XHKD to take his medications. He said his daughter, Ms AY, would also be of great assistance because she effectively manages the household and could help make necessary appointments.
Mr AF said he considered that Ms AP had also been a positive influence because she had told XHKD to “change himself. That was effective. Her contribution to changing his behaviour was good.”
Mr AF confirmed they had set aside a special fund to help XHKD to support his medical needs and treatment. He said that they have a busy house with five or six bedrooms and “we don’t have any problems about XHKD staying here. We don’t want to insist he stays with us, so long as he can manage in life and doesn’t have any problems.”
Under cross-examination, Mr AF was asked when XHKD had worked with him as a painter. Mr AF said when he was at school he helped during weekends and school holidays.
Mr Barrington said that Dr Kwok (TD, p 1036) said that the Applicant had accompanied Mr AF to work because of concerns about his substance abuse if he was left unsupervised. Mr AF said: “Because he was not well, and he was not taking his medication in time.”
Mr AF said that XHKD was working for him full-time in 2014 and in 2015 until he was arrested. He said in 2011 and 2012 XHKD was at home and Mr AF was taking him to work. He said he did not know that XHKD had issues with substance abuse: “I didn’t know that, even up to now I don’t know. I have not seen him with my own eyes. Maybe he has taken drugs with his friends when he goes out…but not in front of me.”
Mr Barrington asked Mr AF whether he suspected XHKD was using drugs in 2011 and 2012. He replied: “That is one of the reasons he ended up in that condition; for sure he was taking them.”
When asked if he tried to stop XHKD from taking drugs, Mr AF said: “If I knew, I would have stopped him. They were taking them secretly, not in front of me.”
Mr AF said when his wife returned to Afghanistan to see her ailing mother, he took XHKD to the doctor and asked for medication, and he received prescriptions for about six months.
Mr AF said he took XHKD to the doctor to refer the Applicant to a psychologist but had to wait six months. He said:
One of the reasons was it being a public hospital. Being passed from one doctor to another. They didn’t do anything. Whenever we went, there was a psychologist waiting list. His condition was no good. There wasn’t a private doctor available, so we had to wait. The cancellation of his visa exacerbated his condition badly. He saw a psychologist for three sessions and not again. After cancellation his condition got worse. Talking to himself. We were telling him not to worry. We were pacifying him.
Mr AF said he considered Ms AP was a good influence because her moral support had helped him. He said he had not met Ms AP face to face but had seen her on video calls when his wife was talking to her and had said hello.
Ms AP
The Applicant’s partner, Ms AP, said she first met XHKD in 2018. They had first met by talking on the phone and grew close. He moved to Melbourne for work and she started seeing him. Ms AP said they now spoke each day and each night on the phone.
Ms AP said she had visited XHKD in detention and had also sent him items such as clothes, shoes and bed linen. Mr Maloney asked how Ms AP would describe their relationship. She responded: “Good. Challenging because of his condition. I do care for him but due to his condition it is very hard. At the beginning he had bipolar, but it has got worse since his release from [prison]. He used to scream, punch himself, smash his phone. He was scared of sleeping. I gave him an i-pad which he destroyed.”
Mr Maloney asked Ms AP whether XHKD shows signs of seeing things that are not there. She responded: “Yes. I catch him nodding and talking to himself. I see him walking around in the middle of the night. He then denies it. He is very paranoid.”
Ms AP said she felt detention is very difficult for XHKD: “When we are sick, we would see a medical professional. He can’t do that.”
Ms AP said she speaks to Mrs AM “[a] lot. I talk briefly to other family members. I strongly believe once he has got better, he will be ok and will be able to work. He is a good person, not a harmful person. I have insurance with BUPA, and I have added him on. We believe if he is released, he needs to go to a hospital. That is the right option for him.”
Ms AP said she planned to move to Sydney if XHKD is released and they do plan marriage, but she said he needs to get healthy first.
Mr Maloney said that there was an allegation that Ms AP attempted to bring drugs into the IDC. She responded: “I am not aware of that; I don’t take drugs myself.”
Mr Maloney then asked Ms AP if she had tested positively for drugs. She responded: “I can’t remember. It is such a long time ago. I do remember the drug test. I don’t take drugs. I asked why I had been tested. The officer said I might have touched something. I never brought drugs inside.”
Mr Maloney asked Ms AP about an altercation between her and XHKD when she visited him in detention. She responded: “We were just mucking around. They cancelled my visit. An ABF officer told me that’s why.”
Under cross-examination, Ms AP said she had been working in real estate but could not work anymore because she was caring for XHKD and it became too much. She said she first met XHKD through Facebook; they had not known each other before.
Ms AP said she had organised BUPA health insurance but did not know the level of cover off the top of her head.
Mr Barrington said that the cost of the cover was $491 per month (TD, p 1056) and asked how she afforded that. Ms AP said: “I am getting benefits at present. I started studying to be a beautician.”
Pressed by Mr Barrington as to how she could afford to pay $491 per month, Ms AP said: “Not now. I stopped it when he went to prison. I spoke to BUPA.” She agreed she did not have active health insurance cover at present.
Mr Barrington referred to IHMS reports where Ms AP was refused entry to the IDC because she tested positive for methamphetamine and for procaine. Ms AP said she did not know what procaine was and said she had never used methamphetamine.
Mr Barrington asked Ms AP about a report of an incident in the IDC in November 2018 when a report recorded that CCTV showed XHKD pushing the arm of Ms AP and, following this, Ms AP abruptly getting up from her seat and walking away.
Ms AP said: “We were just mucking around. He was just annoying me. He didn’t hurt me. He didn’t assault me…sometimes pulls my hair as a joke; I pull his...”
Mr Barrington read to Ms AP other reports by IDC officers alleging that XHKD attempted to strike Ms AP to her face, which she said was not true. He then read to the Tribunal a report which said:
A minute after that CCTV shows XHKD pulling visitor…closer towards him by the hair on her head and proceeded to use his left hand with a closed fist to strike her face.
Ms AP said that this account in the report was not true.
Ms AP was told that the report went on to say that the visitor became “visibly upset and appears to be crying”. Ms AP said that she had never cried during a visit.
Ms AP was asked about a security information report (TD, p 1202) that states: “There are drugs coming in via XHKD’s girlfriend,” and then the report says:
Upon a review of CCTV footage XHKD’s female visitor…arrived in a black hooded jumper with the hood up, and the temperature for the day was 38 degrees. [Ms AP] was impatient and nervous while she waited for XHKD’s arrival in the visit centre. [Ms AP] went to the female bathroom moments after her arrival into the visit centre, and on arrival into the visit saw XHKD physically embrace [Ms AP] including a kiss.
Ms AP responded: “I’ve never brought drugs in and I don’t understand what my clothing has got to do with this. Yes, I’m very covered…A hoodie – the reason why I put the hoodie on is because my hair was messy. I always go to the bathroom…I didn’t bring anything inside…I have no criminal record.”
The Tribunal asked if the report was true that she had embraced and kissed XHKD on her arrival for the visit to the IDC. Ms AP said she did not want to answer the question.
SUBMISSIONS OF THE APPLICANT
Counsel for XHKD noted that the Respondent’s delegate, in considering whether XHKD had been convicted of a ‘particularly serious crime’ decided that the December 2009 and June 2017 convictions of XHKD for firearms offences were not in this category as they ‘did not overtly involve direct violence against a person’ and were not ‘serious drug, property or immigration detention offences’ (TD, p 19) and submitted that the delegate was correct. The delegate was of the view that the November 2008 offence was the only offence that fell within the category of constituting a ‘particularly serious crime’ for the purposes of sections 36(1C)(b) and 36(2C)(b)(ii) of the Act.
The Tribunal has in the past considered how courts and tribunals in the United Kingdom consider this matter (see Re: FYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1512, at [129] to [131]). While consideration of United Kingdom and United States approaches is informative, it cannot displace the fact that section 36(1C) of the Act sets the law in Australia and the note at the end of that section aids decision-makers by directing us to section 5M. Section 5M merely provides a category of offending that is indubitably within the definition of ‘particularly serious crime’. It does not cover the field.
The Respondent submitted that the 2009 firearms offences and the 2015 offending of using an unauthorised firearm were in the category of ‘particularly serious crimes’. In terms of the 2009 firearms offending, the Tribunal agrees with that submission, particularly because of the remarks of the sentencing Magistrate, set out above, who was not only critical that the matter had remained in the Children’s Court, but also made clear the sentence he would have imposed on XHKD if he had not been constrained by the jurisdictional cap.
In terms of the 2015 offending, the Tribunal finds that this also fulfils the requirements relevant to section 36(1C) of the Act. The sentencing Judge said that the actions of XHKD in discharging a firearm in a residential place were objectively serious. Her Honour noted the planning, in the apparent switching off of the CCTV at the home, and the attempt of the Applicant to bury the weapon and ammunition in the garden at his family home when he knew the police were coming to search the premises. Aware of the details of XHKD’s mental health conditions from reports before the Court, Her Honour nonetheless found (TD, p 294) that his mental health did not contribute in a material way to the commission of the offence, so his moral culpability was not reduced because of his diagnosed conditions.
However, in respect of the 2012 offending set out above, I make clear that, as these matters were dealt with at a special hearing, the Tribunal does not consider they fall within the category of resulting in a ‘conviction’ within the meaning of section 36(1C)(b) of the Act. They are therefore outside the scope of offending which may be considered in terms of the prerequisite.
Finding
On the evidence before me, I am satisfied to make a finding that XHKD has been convicted of a ‘particularly serious crime’. He has been convicted of offences which are punishable by periods of imprisonment exceeding three years. In respect of the February 2008 offending, the Judge said she would have imposed a four-year non-parole period, but for the legislative cap. In respect of the 2009 Court appearance, the Magistrate said he would impose a prison sentence of “something like five years.” The most recent offending led to a sentence of three years and seven months.
Second step: Is XHKD ‘a danger to the community’?
The second step of the process is whether the Applicant is, on reasonable grounds, considered a ‘danger to the community’ as at the date of this decision. While the notion of danger arising has a logical origin in the previous criminal convictions of the person, the assessment of whether it can be found, on reasonable grounds, is a contemporary exercise. As Davies J said in WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060, that is a factual inquiry and is fact-specific in each case.
Moreover, the gerund phrase at the beginning of section 36(1C)(b) – “having been” – means that the words immediately following are a dependent clause, so while the criminal convictions are the basis for initiating the section 36(1C) assessment, the second step of the assessment about ‘danger’ may not necessarily directly link to the offending in the first step.
DP Tamberlin referred in WKCG to the words in Article 33(2) of the Convention (now essentially mirrored in section 36(1C)) as ‘plain and simple English’. Bromberg J stated in his judgment in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (‘KDSP’), at [54]:
Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk.
With respect, the Tribunal thinks this is a sensible way to approach the assessment.
The seriousness and nature of the crimes and the sentences imposed
XHKD has committed a range of offences. Some of his driving offences would not fit within the category of being very serious, even if they are objectively offences that merited sanctions.
However, misuse of firearms has been a hallmark of XHKD’s offending behaviour, sometimes in circumstances where he well knew he was prohibited from possessing or being in any contact with such firearms. He has taken delivery of an illegal firearm and has fired firearms in residential areas reckless to the potential consequences.
The kidnapping offence is also very serious offending because it was done in company with others. It involved threats to an individual, including to sign over ownership of his car. It involved menacing the victim with a weapon. The young victim may reasonably have thought he was in fear of his life. It would undoubtedly have been a very frightening experience for the victim.
The sentencing Magistrate and Judges have imposed custodial sentences on XHKD, whether by way of control orders or terms of imprisonment. More than once sentencing judicial officers have expressed frustration that the jurisdictional limit has not allowed them to confer the punishment that they objectively considered would be commensurate with the gravity of XHKD’s offending, when considering all the circumstances of the offences before them.
Any mitigating or aggravating circumstances
XHKD has suffered, on the evidence probably since his early childhood, from significant psychological illnesses. They have been borne from deeply traumatic experiences he and his family had in Afghanistan in seeing family members die tragically, and in having to flee their country. In addition, the devastating and enduring psychologically damaging effect of the experiences visited on XHKD by his abduction in Pakistan and subsequent sequestering for some three years as a young boy can only be imagined.
XHKD’s drug use has aggravated his mental health conditions. He has admitted using cocaine and methylamphetamine. He posted on Facebook several photographs depicting him ingesting white powder (FSTD, pp 2274-2276). In one photograph, the white powder has been arranged to spell out the words “F*** all bitches”. In another photograph he posted in 2015, XHKD posted the words “F*** all cop” laid out using $100 notes. He wrote in the text bar: “F*** the meoc. F*** the gang squad, f*** the afp, f*** the crime commission f*** them all hehe he he he he he (TD, p 213; FSTD, p 2277). The ‘meoc’ referred to in this post would seem to be a reference to the Middle Eastern Organised Crime Squad, a specialist group set up to target the culture of crime that exists within certain minority groups of the Middle Eastern community in western Sydney (TD, p 215). When asked in the hearing about these combative social media posts, Dr Kwok noted they ceased once there was a prospect of the Applicant facing deportation.
In Betkoshabeh, Finkelstein J said, in remitting a Tribunal decision made in relation to Article 33 where Mr Betkoshabeh had committed serious offences but there was clear evidence of mental health conditions:
The Tribunal should have taken into account the fact that it was the appellant’s psychological illness that led to the commission of the offences. It should have taken into account that the appellant’s conduct was directed to a person whom he believed, as a consequence of his psychological illness, had been conspiring to cause him harm. The Tribunal should have considered the extent to which that psychological illness reduced the moral culpability of the appellant…
The facts surrounding the offending by XHKD may be distinguished from the circumstances relating to Mr Betkoshabeh. In XHKD’s case, sentencing Judges, after reviewing psychological and psychiatric reports, have accepted that XHKD has serious and deep-seated mental health diagnoses, but have either not accepted that these conditions have reduced the moral culpability of his criminal acts, or have decided that the moral culpability in one case of proven offending was lessened but not extinguished. It was not submitted by parties that his schizophrenia and hallucinations had led to his offending. Dr Kwok in her evidence explicitly said in answer to questions from the Respondent that she had not found evidence that XHKD suffered from ‘command hallucinations’, i.e. hallucinations which direct a person to undertake an act.
The ASFIC submitted that it would be wrong for the Tribunal to determine that XHKD was a ‘danger to the community’ in terms of section 36(1C)(b) solely because of his mental illness. The Tribunal conditionally accepts that submission. However, the other ingredients that may contribute to ‘danger’ to the community, such as XHKD’s compliance with his medication and abstinence from illicit drugs which it is accepted aggravates his symptoms, are relevant. They are relevant because of Dr Kwok’s oral evidence to the hearing that XHKD’s mental health conditions “impair [his] decisions not to offend” . That factor cannot be overlooked, in my view, in assessing whether he is a ‘danger’ to the community.
XHKD reported to medical staff at the IDC that he used alcohol heavily before being incarcerated and had in the past used ‘ice’ and ‘amphetamine’ (FSTD, p 2124). XHKD also reported “tripping out” and taking lots of “coke” in the past (STD, p 1643).
In April 2020 during a random search of XHKD’s cell, a suboxone strip was found. Suboxone is a schedule 8 controlled drug. The Applicant told prison guards that he had found it in the prison yard and kept it (STD, pp 1490-91). There is no clear evidence that XHKD was taking suboxone, but the discovery of the strip hidden in his cell gives cause for concern. There was also still CCTV footage in the papers before the Tribunal of XHKD retrieving items near the fence of part of the IDC. What these items might be can only be speculated upon, and the Tribunal makes no finding about that other than to remark that this is suspicious conduct.
The period of offending
XHKD’s first appearance before the Court was in June 2008, almost exactly three years after he arrived in Australia to join his family. He has been before the Courts on at least ten occasions where there has been an adverse outcome. The most recent occasion was in June 2017 which led to a prison sentence of three years and seven months, after which he entered immigration detention.
The risk of recidivism
It is difficult to assess XHKD’s contemporary risk of re-offending with precision. It is clear to the Tribunal that he has significant psychological illnesses, and I accept the submissions made on his behalf that his mental health has deteriorated since he has been incarcerated, first in prison and more latterly in immigration detention. He has access to good medical care, including specialist medical care, in the IDC. However, I accept that in terms of the need identified by Dr Kwok of residential psychiatric care, a detention centre is not a place suited for that treatment. Apart from this, the IDC is an artificial environment for XHKD. On one hand, the IDC does not provide some of the temptations that have been a feature of his past offending, such as mixing with undesirable associates and ready access to illicit drugs and alcohol. On the other hand, it distances him from the supportive environment of his family.
In a pre-release report prepared by the New South Wales Department of Corrective Services in 2018, the writer identified XHKD’s mental health and illicit drug use as significant risks, and referred to a 2017 report of a clinical psychologist which stated (STD, p 1443):
[XHKD] will require both close psychiatric and psychological monitoring for many years to come…
In her 4 July 2019 report, Dr Kwok wrote (TD, p 1037) that XHKD:
Denied being part of any outlawed motorcycle gang as reported in the media, although he accepted he had been associated with them.
In the papers before the Tribunal were references to newspaper reports about XHKD being associated with outlaw motorcycle gangs, if not himself a member of such a gang. I also note that in EWV20 as litigation representative for AFF20 v Minister for Home Affairs (No 3) [2021] FCA 866, Griffiths J said, at [6]:
… It is common ground that he [i.e. XHKD] has been associated with several outlaw motorcycle gangs.
Dr Kwok, in her 8 December 2020 assessment, referred to XHKD saying he had ‘done a deal with the devil’ and expressing the view that the devil speaks through his family and Ms AP. He also expressed the view to her that the devil had ‘snuck’ his family in to see him and that, in detention, he was currently ‘having a big war with the devils’. He told Dr Kwok he believed his solicitor was conspiring with the devil to keep him in detention.
Dr Kwok wrote:
Despite the above, XHKD stated he does not suffer from a mental illness. He said he is willing to take medication for sleep and stress relief. He further reported that he can see the doctor (i.e. the psychiatrist) every two or three days, but ‘the devil’ tells him not to see the doctor nor to take his medication. He stated he does not want to see the doctor, nor be admitted into hospital, because he “wants no drama” with the devil....
According to XHKD, he does not attend any group therapy nor receive any form of mental health support at the detention centre. The IHMS records, however, indicate that he was seen multiple times by the psychiatrist.
Dr Kwok then set out her opinion on the risk factors that would need to be addressed in relation to XHKD’s risk of re-offending. She said he would require a multi-disciplinary team comprising his treating doctor, psychiatrist, psychologist and the community mental health team. Dr Kwok considered that XHKD’s general practitioner could be a suitable case manager for a treatment plan. She was of the view that his treatment should begin at a private mental health hospital.
Dr Kwok said, “we cannot assume that psychiatric treatment is the principal solution”. She cited other risk factors that need to be addressed including antisocial cognition and XHKD’s personality pattern.
In responding to a question as to whether she believed XHKD would be responsive to, and aided by, treatment in the community which may reduce his risk of re-offending, Dr Kwok wrote:
XHKD has both a serious mental illness and troubling personality traits involving poor impulse control and anger. As such, the usual community mental health services are unlikely to prevent recidivism and problematic behaviours without accompanying psychiatric and correctional treatment that targets his risk factors. Unfortunately, patients with psychotic disorders often refuse to accept treatment even when advised to do so and treatment nonadherence is a critical target for crime prevention.
XHKD is currently non-compliant with psychiatric treatment at the detention centre apart from taking his medication, because he does not accept his mental illness. I am, therefore, guarded about his adherence to treatment in the community. In general, not being in receipt of treatment while in detention and following release is associated with increased risk of recidivism. In the absence of adherence to follow-up intervention in the community, XHKD will be at greater risk of resuming his use of illegal drugs and alcohol, and returning to his previous lifestyle. He is, thereby, at risk of continuing the cycle of problematic behaviours.
Dr Kwok said family support would be important and she did not interview XHKD’s family as part of that particular assessment, but she felt they would be supportive from the evidence of their daily FaceTime and telephone contacts with him, and that his father’s offer of employment would also be an important positive factor.
Dr Kwok said that XHKD has poor insight into his offending and in fact denied to her he had ever been convicted of an offence. She said it was important to note that impaired insight was not a wilful denial but rather part of his mental illness.
She went on:
There is a relationship between poor insight and treatment adherence. Without insight, it is difficult to reduce antisocial attitudes, values and beliefs that are supportive of crime. Lack of insight and mental illness will also impinge on XHKD’s functioning such as problem solving, anger management and impulse control.
In terms of XHKD’s conduct since being in immigration detention, Dr Kwok was of the view that they indicated poor impulse control. She said he had provided certain explanations which indicated, to her, that he had a level of insight into his behaviour at the time. However, when she asked him about incident reports in detention, the Applicant denied he had ever been aggressive towards anyone in detention, nor that he had participated in any riots.
Before the Tribunal (TD, pp 462-476) were various reports from officers at the IDC relating to XHKD and interactions with other detainees. There were some reports that it was ‘probable’ that when he was at an IDC in Melbourne, XHKD was involved in the supply of illicit substances, owing to ‘frequent reporting’ and a report from another detainee that XHKD ‘is a dealer and brings in the drugs’. There appears to be no corroborative proof of these allegations, but several reports of suspicions by officers at the IDC.
There were also concerns that Ms AP might be involved in bringing drugs into the detention centre. The authorities at the IDC received intelligence that drugs were to be brought into the IDC by “XHKD’s girlfriend”. On the information before it, the Tribunal is unable to make any conclusive findings about these allegations. However, some of the responses of Ms AP in her evidence were inconsistent and less than frank, in particular when she was questioned about returning a positive drug test when she visited XHKD at the IDC. An incident report by the Acting Detainee Service Manager which said (TD, p 471):
On 11th October 2018 at approximately 1343 hrs, visitor [Ms AP] being for XHKD tested positive to Methamphetamine when screened using the ion scan. The visitor was refused entry to MIDC after testing positive a second time to Procaine at approximately 1345 hours. The visitor was advised that the visit would be cancelled due to the positive readings and departed MIDC without further incident.
Ms AP gave evidence that an officer told her that the positive result was because she “might have touched something”. She suggested to the Tribunal that she may have touched something on the bus on the way to the IDC. Neither of these explanations seems plausible. If that was the officer’s view, it would not have been likely to have resulted in her visiting privileges being cancelled for a period.
There was a further report on a visit the following month by Ms AP to XHKD which recorded:
At approximately 1740, XHKD attempted to have struck [Ms AP] by using his left backhand onto her face in which she manage to avoid a connection to the face…At approximately 1741 hrs, CCTV…shows XHKD pulling visit [Ms AP] closer towards him by the hair on her head and proceeded to use his left hand with a closed fist to strike her in the face. Visitor [Ms AP] became visibly upset and appears to be crying when XHKD again pulls hair from visitor [Ms AP] forcing her to move towards him. At approximately 1848 hrs, CCTV footage shows XHKD and visitor [Ms AP] demonstrating signs of affection by kissing and hugging multiple times.
Ms AP denied that any of this happened in her evidence to the Tribunal and when asked directly by the Tribunal whether she had kissed XHKD during a visit, Ms AP said she preferred not to answer the question. It was conduct that could have been entirely innocuous and explainable, but this refusal invites doubt.
I do not suggest that Ms AP’s relationship with XHKD is not genuine, but in the circumstances of apparently returning a positive drug test when visiting an IDC, it is not clear that her association with him will be entirely positive if he is released into the community, given his former drug habit. Dr Kwok also said it would be a concern to her, in her professional opinion, if Ms AP was a drug user and was with XHKD. In this respect the Tribunal notes the medium-term plan Ms AP has is to move to Sydney if XHKD is released into the community and, after he has been treated, to set up home with him as a couple.
Counsel for XHKD urged the Tribunal to accept the evidence of XHKD’s parents and sister, Ms AY, in terms of their willingness to support XHKD. I have no reservation in doing that. I also accept Mr AF’s evidence that a fund of around $20,000 has been set aside to help with mental health treatments for his son. There was conflicting evidence about health insurance, but I accept that it would be available to XHKD on release into the community, with the premiums probably funded by Mr AF.
I accept Mr AF’s evidence that having previously thought there was a supernatural cause for his son’s psychosis, he now has a much better understanding of XHKD’s mental health condition. I also accept Mrs AM’s evidence that she has been strongly supportive, including very frequent and comforting telephone contact with XHKD while he has been in detention, especially in relation to his major sleep pattern problems. I accept Ms AY’s evidence that, while she has been mainly occupied with her university studies, she has made some inquiries about in-patient care that might be available for her brother (see for example Exhibit A8).
However, I believe that there is a possibility, and it is more than a remote possibility, that XHKD would resume offending in the community. Dr Kwok’s December 2020 report was frank and recorded XHKD’s mental decline, but she also made clear her professional conclusion that the diagnoses of XHKD’s mental conditions have not been the sole drivers of his criminal conduct. In the incident where he fired a prohibited firearm from his home, it must be remembered that this was an occasion where he was living with his family, and he undertook this conduct when they had gone out. It did not seem to be a spur-of-the-moment act, because the weapon may have been delivered to him by persons unknown after he had turned off the CCTV system at the house, and when the police arrived not only did he attempt to hide the ammunition in the lavatory, he did bury the gun itself and a magazine in the garden, if ineptly. He clearly had what the Judge described as ‘the presence of mind’ to do that, and to know he was prohibited from having the weapon and the ammunition.
I also take into account XHKD’s history of non-compliance with medication. His mother gave evidence that she had to mete his medicine out, because she was concerned he would not regulate the correct dosage himself. His father’s evidence was that XHKD hid from his parents his illicit drug taking, at a time when he said his friends and associates were urging him to take drugs, rather than prescribed medication, to combat his mental health challenges. I also note that Dr Kwok remarked that the treatment plan for XHKD does not adequately address his identified antisocial cognition. Impulse control has been a factor in his criminal conduct.
I take account that sentencing judges have found that XHKD’s criminal conduct has not been caused by his mental health conditions. It would seem to me that XHKD’s mental health has sharply declined over the last 24 months or so, but I am not convinced that this decline has necessarily reduced his risk of re-offending and, because of the nature of his past offending, the danger to the community that he presents. Although he denied taking medication to Dr Kwok, it would appear on the records before me that he has been relatively compliant in that regard in detention. A report dated 13 January 2021 from officers at the IDC states that XHKD attends the medical dispensary each evening for medication. At the same time, he is also, to use the term in the clinical way Dr Kwok uses it, ‘non-complaint’ in respect of (i) some medical appointments and (ii) not appreciating he has a mental illness. However, that is only one aspect of addressing his conduct that would need to be addressed, as she points out in her report.
XHKD has some history of not being compliant with taking prescribed medication when in the community. In 2017 XHKD elicited statements from various friends to make representations to the Department on his behalf. In a letter dated 19 April 2017 (TD, p 371), one friend relevantly wrote (regarding the Applicant’s 2015 arrest):
[XHKD] had not taken his medication prior to his arrest for several months and was self-medicating himself [sic] with illegal substance.
Another friend, asked by XHKD to make a submission, wrote (TD, p 372):
I believe [XHKD] got himself into trouble because he was not taking his medication.
This evidence is all from persons who knew XHKD and were making representations in his best interests. I am not satisfied that, outside the protective environment of the IDC, given this history XHKD would necessarily be compliant in taking his prescribed medication. This is especially so when his most recent encounter with Dr Kwok included his denial of having psychiatric conditions and denial that he was having psychiatric care in the IDC (when in fact he is).
The medical opinion all points towards XHKD needing residential mental health care. I am not reassured by the suggestion that this could, if he refused to co-operate, be arranged through a CTO obtainable by his general practitioner.
The Applicant’s brother, currently in prison but soon to be released, has not been a positive influence on XHKD in the past. Mr Maloney rightly pointed out that, on release, XHKD’s brother would not be living in the family home but would be living with his own partner elsewhere. However, it is reasonable to conclude they would resume their brotherly associations, and, in the past, that has not helped XHKD staying within the law.
Finding
Dr Kwok’s professional opinion was that XHKD has poor impulse control, anger management problems and poor insight. Her opinion carries weight because she has examined him on several occasions over a period of more than two years. Overall, given XHKD’s antisocial criminal history, coupled with his propensity to associate with organised criminal gangs and individuals, I am reasonably satisfied that he would constitute a danger to the community if released. Although I have made clear that I accept Mr Maloney’s submissions that section 36(1C) of the Act is not designed to be used for ‘danger to the community’ that might arise from a medical condition, and he as an example cited a person with an infectious disease, it would be counter-intuitive not to also take into account that XHHD’s severe mental health conditions are a factor in assessing the level of the danger. One cannot be completely quarantined from the other. Regrettably these conditions provide an environment of vulnerability, and, it would appear from his evidence about his friends’ influence on him in his drug-taking, suggestibility.
I do not believe that my conclusion conflicts with the decision in Betkoshabeh, because this is not a case where mental illness alone has been the accepted catalyst for XHKD’s criminal offending, though it has clearly played a part. XHKD’s mental health challenges may place him in circumstances where a resumption of offending is more likely. That danger might be reduced if he was completely compliant with his doctors’ advice and undertook intensive residential psychiatric care but, as Dr Kwok was clear, there are other, non-pathological, components to XHKD’s offending and risk of re-offending which remain, in the Tribunal’s view, present. I am reasonably satisfied on all the evidence, using the term in KDSP, that there he would present a high risk of danger to the community.
XHKD has a history of illicit drug use, associating with known criminals (including a brother), and reckless use of firearms. He also has a history of not being compliant, in the community, with his medication and other treatment regimen. While he may be more compliant currently in terms of taking his medication and not taking illicit drugs, I cannot ignore the fact that he is in a protective environment, not in the community where he has persistently re-offended before. He has relapsed to illicit drug use after periods of abstinence and has also reverted, as the extracts from testimonials above illustrate, to failing to take necessary medication to curb the psychotic aspects of his conditions. It may be that this failure has not been deliberate. It may be that it has been partly fuelled by the negative influence of undesirable associates. It may be because XHKD lacks an awareness of his condition. Or some combination of these factors may together be the reason. But the fact remains that this is an element in XHKD’s circumstances which has fed into his criminal conduct. As Dr Kwok states, it “impairs his ability to make decisions not to re-offend”.
CONCLUSION
The Tribunal is satisfied that XHKD has been convicted by final judgment of a ‘particularly serious crime’, within the terms of section 36(1C)(b) of the Act. The Tribunal is also satisfied that XHKD is, presently, a danger to the community, in terms of the high risk that was contemplated in KDSP. The protective factors of a supportive family have been present in the past but have not prevented re-offending. While there is some suggestion that he has been involved in trading illicit drugs in detention, there is not sufficient material other than broad allegations for me to come to any conclusion on that. It does not appear that he has resumed taking illicit substances in the IDC. However, I believe his history shows that he is very vulnerable to such a resumption outside the protective environment that the detention centre provides.
I also consider XHKD is vulnerable to taking up with former criminal associates when returned to his home environment, because that is what he has done in the past. These two factors have in the past led him into re-offending. Added to this is what is described as XHKD’s antisocial cognition and poor impulse control, and lack of remorse. I take into account that a treatment plan has been developed. The plan is well-intentioned and contains important elements, but it is also significantly incomplete in not adequately addressing the non-psychiatric challenges XHKD faces: his impulsiveness, criminal traits and his ‘antisocial personality pattern’. I therefore find that, notwithstanding some protective factors such as support of his family members, there are reasonable grounds to conclude that XHKD presents a current danger to the community.
The conclusion of the Tribunal therefore is that XHKD:
(a)has been convicted of a particularly serious offence; and
(b)is a danger to the community.
The consequence of that finding is that the decision under review must be affirmed.
DECISION
The reviewable decision is affirmed.
265.
266.
267. I certify that the preceding 264 (two hundred and sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 12 August 2021
Dates of hearing:
6 and 7 May 2021
Counsel for the Applicant:
Mr John Maloney
Solicitors for the Applicant:
Carina Ford Immigration Lawyers
Counsel for the Respondent:
Mr Jonathan Barrington
Solicitors for the Respondent:
The Australian Government Solicitor
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