YTZR and Minister for Home Affairs (Migration)
[2018] AATA 3924
•17 October 2018
YTZR and Minister for Home Affairs (Migration) [2018] AATA 3924 (17 October 2018)
Division:GENERAL DIVISION
File Number: 2018/4249
Re:YTZR
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Member Richard West
Date:17 October 2018
Place:Melbourne
The Tribunal sets aside the decision under review and in substitution decides that the Applicant not be refused a Safe Haven (Enterprise) Class XE visa under s.501(1) of the Migration Act 1958.
[sgd]........................................................................
Member Richard West
Catchwords
MIGRATION – refusal of application for Safe Haven (Enterprise) Class XE visa – criminal offences – mental illness – character test – meaning of ‘risk’ of engaging in criminal conduct
Legislation
Migration Act 1958 (Cth)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
REASONS FOR DECISION
Member Richard West
17 October 2018
INTRODUCTION
This is an application for the review of a decision of a delegate of the Minister for Home Affairs (the Respondent) made on 24 July 2018 to refuse to grant a Safe Haven (Enterprise) Class XE visa to YTZR (the Applicant) pursuant to s.501(1) of the Migration Act 1958 (the Migration Act). The delegate was not satisfied that the Applicant passed the character test for the purpose of s.501(6)(d)(i) of the Migration Act.
The hearing was conducted on 8 October 2018. The Applicant was represented by Ms Tanya Skvortsova of counsel, instructed by Refugee Legal. The Respondent was represented by Ms Rachael Law, a solicitor from Clayton Utz. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
For the reasons that follow, I have decided to set aside the decision under review.
BACKGROUND
The Applicant is 36 years old. He was born in Sri Lanka and is of Tamil ethnicity. He fled with his family to India when he was seven years old. He lived in a refugee camp in India until 2012 when he travelled to Australia arriving on 5 November 2012 as an illegal maritime arrival.
On 14 May 2013 the Applicant was granted a Bridging E (Class WE) visa and a seven day Humanitarian Stay (Class UJ) Subclass 449 visa under s.195A of the Migration Act.
From arrival he lived in Geelong, Victoria and became involved with a local church, having converted to Christianity.
On 26 May 2016 the Applicant applied for a Safe Haven (Enterprise) Class XE visa.
On 7 July 2016 the Applicant was charged with three offences arising out of the events in Cooma on 3 July 2016.
On 28 July 2016 the Minister cancelled the Applicant’s bridging visa under s.116(1)(g) of the Migration Act because he had been charged with an offence.
On 17 October 2016 the charges against the Applicant were dismissed.
The Applicant was released from prison on 19 October 2016 and placed in immigration detention.
On 20 July 2018 the Applicant’s application for a Safe Haven (Enterprise) Class XE visa was refused by the delegate under s.501(1) of the Migration Act, on the basis that the Applicant did not pass the character test under s.501(6)(d)(i). The Applicant seeks a review of that decision.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Migration Act provides that the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that they pass the character test.
Section 501(6) relevantly provides that for the purpose of s.501(1), a person does not pass the character test if any one or more of the eleven circumstances set out in s.501(6) applies to the person. In the present case the relevant circumstance is set out in s.501(6)(d)(i):
“..in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia;…”
If a visa applicant does not satisfy the Minister that they pass the character test, the Minister retains a discretion under s.501(1) to refuse or grant the visa. The exercise of the discretion is subject to Ministerial Direction 65 (the Direction). Section 499(2A) of the Migration Act mandates that a person or body, such as the Tribunal, having powers or functions under the Act must comply with the Direction in making its decision.[1]
[1] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.
EVIDENCE
In conducting the review I have had regard to:
a)each of the documents produced to the Tribunal by the Respondent pursuant to Section 501G of the Migration Act and numbered 1 to 272 (the G Documents)[2];
b)each of the documents produced to the Tribunal by the Applicant, being a bundle of documents numbered 1 to 154 (the A Documents)[3];
c)the oral evidence of the Applicant;
d)the oral evidence of the Applicant’s witnesses, Catherine Bond, Stephen Burger, Mr VR, Colin Simpkin and Michelle Filipovic; and
e)the expert evidence of Dr Nina Zimmerman.
[2] In referring to the G Documents in this decision the relevant page numbers are cited, for example, G34 refers to the document at page 34 of the G Documents as filed.
[3] In referring to the A Documents in this decision the relevant page numbers are cited, for example, A34 refers to the document at page 34 of the A Documents as filed.
The Cooma Incident
The central issue in the Applicant’s case arises from the events which occurred in Cooma in June/July 2016 (the Cooma Incident). In reaching my decision I have relied on the police report of the events giving rise to the Cooma Incident[4], but in doing so I have been mindful that the facts were not tested in court and the Tribunal was not provided with all of the factual material related to the charges laid against the Applicant arising out of the Cooma Incident.
[4] G40-42
The police report states that:
a)at about 7.30 am one morning in mid-June 2016 the victim, a 19 year old female who lived alone in a single story unit in Cooma, observed the Applicant sitting in his car stopped in the road outside the front gate of the unit staring at her[5];
b)at about 1.40 am on 3 July 2016 the Applicant entered and shortly afterwards exited the victim’s unit through an unlocked door while she was asleep in bed;
c)at about 4.30 pm on 3 July 2016 the victim saw the Applicant sitting in a car in her parking space outside the unit;
d)the victim went to her front door and found her spare key on the floor outside the door, the spare key having been left by her inside the unit;
e)the victim called a friend who arrived after the Applicant had driven away;
f)the victim and the friend drove after the Applicant and he stopped his car and waved to the victim to come over to him whereupon he admitted entering the victim’s unit, taking her spare key and drinking a glass of water;
g)the Applicant admitted to police that he had entered the unit at 1.40am on Sunday 3 July 2016 and at another time later that day, that he had taken the spare key and attempted to lock the front door when he left, placing the spare key outside the door, and that he had looked in the fridge and drank a glass of water.
[5] The evidence of Mr Filipovic and Rev. Simpkin was that the Applicant was last seen in Geelong on 25 June 2016.
The Applicant was arrested on 3 July 2016 and conveyed to a mental health facility in Goulburn. On 7 July 2016 he was charged with the following offences[6]:
a) Breaking and entering with intent to commit a serious indictable offence.
b) Attempt stalk/intimidate intend fear of harm.
c) Enter building with intent to commit indictable offence.
[6] G38
On 5 September 2016 Dr Scott Clark, a consultant forensic psychiatrist, provided a medico-legal report to the Court at the request of the Magistrate[7]. Dr Clark diagnosed that the Applicant was suffering from a schizophrenic disorder and major depression with psychotic features, including auditory hallucinations, guardedness, disordered behaviour, delusions and depressed mood.
[7] G147
The Local Court of NSW at Queanbeyan, acting under s.32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW), dismissed the charges against the Applicant and discharged him into the care of the Bellarine Community Mental Health Team on condition that he take prescribed medication and attend counselling/treatment in accordance with his medical advice. In addition the Court made an Apprehended Personal Violence Order (APVO)[8] against the Applicant for the protection of the victim under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
[8] G43
Witness Evidence
The Applicant gave evidence that once he had been granted a visa he moved to Geelong and became involved with a local Christian church. He said he experienced mental health problems in 2014 and received treatment from Barwon Health and was prescribed medication which he took. He also received counselling from a psychologist or psychiatrist from time to time. He said that in 2016 he ceased taking his medication at the insistence of his fiancé in India and he relapsed. He was worried about his visa status and decided to drive to Sydney to see an immigration lawyer.
The Cooma Incident occurred while he was en route to Sydney. He stated that he does not remember much about the Cooma Incident but he became aware of what happened when told by his lawyer. He expressed remorse for the effect of his actions on the occupant of the unit and indicated that he now fully understands that it is important that he continue to take his medication to control his mental health issues. He stated that he has continued to take his medication for the last two years while in detention.
The witnesses called by the Applicant were members of his church congregation in Geelong all of whom had known the Applicant for a considerable time since he came to Geelong in 2013. They described the Applicant variously as courteous, pleasant, gentle, polite, respectful, friendly, cheerful, reliable, trustworthy and humble. Each was emphatic that they had never witnessed the Applicant being violent, intimidating or aggressive.
Ms Bond gave evidence that the Applicant’s demeanour changed in 2014 following the suicide of his friend who had set himself on fire. She said that he became stressed, anxious, frightened and withdrawn for around twelve months. Mr Burger recounted an incident during this time where the Applicant had become agitated and upset at church and was taken by ambulance and admitted to hospital. Medical records show that the Applicant was admitted to the Barwon Health psychiatric unit in June 2014 and again in August 2014 and that he was prescribed antidepressants and antipsychotics and monitored by the unit for two years. Dr Zimmerman reported that the records confirm that on 28 April 2016 the Applicant was discharged for follow up by his GP with no current psychosis or depression and was not prescribed any antipsychotic or antidepressant medication after that time.
Mr VR said he had first met the Applicant while in detention on Christmas Island and they had associated together as part of a group of Tamil refugees living in the Geelong area. He stated that the Applicant had struggled with mental health issues in the period April to June 2016 and that the Applicant had gone missing on 25 June 2016. He reported this to the Geelong police and was told by them two days later that the Applicant had been arrested in Cooma.
Evidence was led as to the strong community support that the Applicant could expect to receive if he returned to the Geelong community. Mr Burger, a Church Camp Manager gave evidence that the Applicant had been involved in voluntary work at the camp and that if the Applicant is released back into the community he would support him with paid work at the camp when it was available. Mr Simpkin, the pastor of the church gave evidence that he had arranged for a retired teacher to work with the Applicant to improve his English if he is released into the community so that the Applicant can better communicate with others about his mental health issues. Ms Filipovic, a support worker with the church gave evidence that she was available to provide pastoral care to the Applicant if he is released into the community. Her role as a support person would be to assist the Applicant by providing emotional support and assisting him with his medical program including taking him to medical appointments and overseeing his medication.
Expert Evidence
The Applicant provided to the Tribunal a report of Dr Nina Zimmerman, a consultant forensic psychiatrist, dated 3 October 2018[9]. Dr Zimmerman gave oral evidence by telephone at the hearing.
[9] A35
Dr Zimmerman interviewed the Applicant on 1 October 2018, reviewed court documents, police reports of the Cooma Incident and the Applicant’s medical history. She reported that:
a)the Applicant suffers from a psychotic disorder most likely schizophrenia;
b)at the time of the Cooma Incident the Applicant was suffering from an acute relapse of his schizophrenia;
c)there was no evidence of psychotic symptoms and major depression on examination on 1 October 2018 and the Applicant reported regular compliance with prescribed antidepressant and antipsychotic medication;
d)the Applicant’s disorganised and chaotic behaviour in the Cooma Incident as reported by the police was not within any of the recognised categories of stalking;
e)there was a low risk that the Applicant would cease taking his medication in the future; and
f)if he did cease taking his medication it may result in a psychotic episode but there is a negligible risk that the Applicant would engage in stalking behaviour or violence.
Dr Zimmerman’s overall conclusion was that:
“Given the absence of historical risk factors of violence or stalking, the well-controlled and adequately treated mental illness and the presence of supports, I believe that (the Applicant) presents a negligible risk of causing harm to the Australian community”.[10]
[10] A47
Dr Zimmerman further noted that the Barwon Health records show that upon the Applicant’s discharge on 28 April 2016 he was not prescribed further antidepressant or antipsychotic medication. He was only provided with sleeping tablets so that when the Applicant said he had ceased his medication prior to the Cooma Incident he was most likely referring to the sleeping tablets and the real cause of his psychotic episode was the failure of Barwon Health to continue his medication.
On the basis of the evidence I find that the Applicant entered Australia in November 2012, was granted a visa in May 2013 and moved to Geelong. He commenced to suffer mental health problems in 2014 following the suicide of his friend. He sought medical assistance and was treated by the Barwon Health psychiatric unit from June 2014 until his discharge in April 2016. During this period the Applicant complied with a treatment regime which comprised prescribed antipsychotic and antidepressant medication. The Applicant was discharged from Barwon Health’s care in April 2016 with no current psychosis or depression and no antipsychotic and antidepressant medication were prescribed. The Applicant relapsed in the period from April to June 2016 due to the absence of prescribed medication and in late June/early July he became involved in an incident in Cooma when suffering from a schizophrenic disorder and major depression. The Applicant was taken into custody, first in a mental health unit and later immigration detention, during which time he had access to mental health treatment including prescribed antipsychotic and antidepressant medication. The Applicant has complied with the treatment and by 1 October 2018 he was in full remission.
Respondent’s Contentions
The Respondent contends that in light of the Applicant’s past aberrant and threatening behaviour, and his ongoing serious medical condition, there is a more than a minimal risk that if allowed to remain in Australia, the Applicant would engage in criminal conduct or harass, intimidate or stalk another person in Australia and therefore he does not pass the character test in s.501(6)(d)(i) of the Migration Act.
As the Tribunal has previously noted, the word ‘risk’ is not qualified by any adjective such as ’significant’, ‘substantial’ or ‘real’, but clearly s.501(6)(d) of the Migration Act does not require the Tribunal to be satisfied that there is no risk that the Applicant would engage in criminal conduct if allowed to remain in the Australian community[11]. It would be impossible to administer a test which required the elimination of all risk given human fallibility. The correct test is set out in s.6(2) of Section 2 of Annex A to Direction 65, which states that there must be ’more than a minimal or remote chance’ that the Applicant will engage in ’criminal conduct’.
[11] See QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855 at [13]
Applying a literal meaning to the words ‘minimal or remote’ it includes ‘negligible’ or ‘unlikely to occur’[12] but it is not a concept which requires a mathematical assessment of probability. The nature of the risk must be assessed having regard to the objective of the character test in s.501(6) of the Migration Act which reflects the principle stated in s.6.2(1) of Direction 65 that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
[12] Oxford Online Dictionary
It is also important to note in this case that the risk at issue is a risk of the Applicant engaging in criminal activity. Section 6.1(2) of Section 2 of Annex A to Direction 65 makes it clear that this refers to conduct for which a criminal conviction could be recorded.
Central to the concept of criminal conduct is the concept of a ‘guilty mind’. There are, of course, strict liability offences but as a general rule, under the common law, criminal conduct requires intention or at least a reckless disregard. Certainly the offences with which the Applicant was charged after the Cooma Incident required criminal intent. In the Applicant’s case the character evidence does not indicate any propensity to form the necessary ‘criminal intent’ in his interaction with people. The expert evidence of Dr Clark and Dr Zimmerman is that, in the Cooma Incident, the Applicant’s conduct was entirely attributable to his psychosis. In assessing the risk that the Applicant will engage in criminal conduct it is relevant that there is no evidence of any propensity to engage in violent, intimidating or aggressive conduct. He was consistently described by those that know him as courteous, pleasant, gentle, polite, respectful, friendly, cheerful, reliable, trustworthy and humble.
In assessing the risk that the Applicant will engage in criminal conduct if allowed to remain in Australia I have had regard to the following findings based on the evidence:
a)There is no history of the Applicant being violent, intimidating or aggressive;
b)the Applicant has no criminal record in Australia and there is no evidence that he has a criminal record in India;
c)the Applicant has an unblemished record while in detention;
d)the criminal charges laid as a result of the Cooma Incident were never proven and they were dismissed by the court in favour of an order directed to the Applicant’s mental health;
e)the making of an APVO against the Applicant for the protection of the victim did not involve any findings of criminal behaviour by the Applicant;
f)the police report of the Cooma Incident did not assert that the Applicant had acted violently or that he had threatened violence;
g)the Applicant’s conduct in the Cooma Incident as reported by the police was not within any one of the recognised categories of stalking;
h)the Applicant has complied with his medication regime over the two years he has been in detention and there was no substantive non-compliance during the period from June 2014 and April 2016 while he was under the care of Barwon Health;
i)the Applicant has the strong support of his church community if he remains in Australia;
j)the Applicant was suffering a schizophrenic disorder and major depression with psychotic features, including auditory hallucinations, guardedness, disordered behaviour, delusions and depressed mood at the time of the Cooma Incident; and
k)with proper treatment and support the Applicant presents a negligible risk of causing harm to the Australian community.
On the basis of these findings I am comfortably satisfied that, if it were not for the Applicant’s mental illness, there is no risk that the Applicant would be more likely to commit a criminal offence in Australia than any other member of the community. As to his mental illness, the expert opinion is that he represents a negligible risk. I am comfortably satisfied that the Applicant understands the possible consequences of ceasing his prescribed medication and that he will not do so. I am also satisfied that the Applicant has strong community support to enable him to deal with his mental illness. I am also satisfied on the evidence that even if the Applicant were to cease his medication leading to a psychotic episode that the risk that this would result in the Applicant committing a criminal offence, and particularly an offence involving violence, intimidation or stalking, is very low. On this basis I am satisfied that there is not more than a minimal or remote chance that the Applicant will engage in criminal conduct if allowed to remain in the Australian community.
I am therefore not satisfied that the Applicant does not pass the character test by virtue of s.501(6)(d)(i) of the Migration Act.
Other Considerations
Although not contended by the Respondent, I have also considered the character test under ss 501(6)(c) and 501(6)(d)(ii).
s.501(6)(c)
There is no basis for a finding under s.501(6)(c)(i) that the Applicant has engaged in any past or present criminal conduct. He has no criminal record.
Past and present general conduct will only be taken to reveal that a visa applicant is not of good character under s.501(6)(c)(ii) if there is continuing conduct which demonstrates a lack of enduring moral quality[13]. There is no evidence to base a finding that the general conduct of the Applicant lacks the enduring moral qualities of a person of good character. On the contrary the character evidence by members of his community is consistent in attesting to his positive moral qualities. The Applicant’s conduct in the Cooma Incident is a single isolated event which does not demonstrate any lack of morality. The expert medical evidence is clear that his conduct was attributable to his psychosis and did not involve any threatening or violent behaviour.
[13] Paragraph 5(4) of Section 2 of Direction 65 citing Lee J. in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 – see also Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432
s.501(6)(d)(ii)
I am satisfied that there is no appreciable risk that the Applicant would ‘harass, molest, intimidate or stalk another person in Australia if he is allowed to remain in the community. Leaving aside the Cooma Incident, there is no evidence that he has engaged in such conduct or is at risk of doing so. The Cooma Incident as reported by the police did not involve violence or molestation. The expert evidence of Dr Zimmerman was that the conduct as reported was not within any of the recognised categories of stalking and she assessed the risk of the Applicant engaging in stalking as negligible.
I have considered the other aspect of the character test in s.501(6) of the Migration Act and I am satisfied that they are not relevant to the Applicant.
Unless an applicant meets the requirements of one or more paragraphs in s.501(6) of the Migration Act the section makes it clear that the person is taken to have passed the character test.
On this basis I am comfortably satisfied that the Applicant passes the character test.
CONCLUSION
Having carefully considered all of the evidence I am not satisfied that there is a more than a minimal or remote risk that the Applicant will engage in criminal conduct if he is allowed to remain in Australia and that the grounds in s.501(6)(d)(i) of the Migration Act are not met. I am further satisfied that the Applicant does not meet any of the other grounds under s.501(6) of the Migration Act. Accordingly, I am not satisfied that the Applicant does not pass the character test and as the discretion under s.501(1) of the Migration Act is not enlivened it is not necessary for me to consider the requirements of Part B of Ministerial Direction 65.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Applicant not be refused a Safe Haven (Enterprise) Class XE visa under s.501(1) of the Migration Act 1958.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Richard West
[sgd]........................................................................
Associate
Dated: 17 October 2018
Date(s) of hearing: 8 October 2018 Date final submissions received: 10 October 2018 Counsel for the Applicant: Ms Tanya Skvortsova Solicitors for the Applicant: Refugee Legal Advocate for the Respondent: Ms Rachael Law Solicitors for the Respondent: Clayton Utz
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