ZRTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1330
•27 April 2022
ZRTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1330 (27 April 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1264
Re:ZRTY
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:27 April 2022
Place:Sydney
The Tribunal orders that the reviewable decision be set aside and the matter be remitted to the Department for reconsideration.
.........................[sgd]...............................................
Deputy President B W Rayment OAM QC
CATCHWORDS
Migration – mandatory visa cancellation due to criminal record – refusal to revoke the mandatory cancellation of a Class WC Subclass 030 Bridging C Visa – applicant does not pass the character test – whether there is another reason to revoke the visa cancellation – returning the applicant to his home country would expose him to great risk – matter remitted to the respondent for further consideration
LEGISLATION
Migration Act 1958
SECONDARY MATERIALS
Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
27 April 2022
The applicant is 21 years old. He was aged 18 when he came here from Italy. He worked in a restaurant for 6 months. His mother had been here for about 6 months before he arrived and intends to stay here.
I have decided to give him a pseudonym because he has a pending application for a protection visa.
His visa was the subject of mandatory cancellation and since there is no doubt that he does not pass the character test, the question is whether there is another reason why the cancellation of his visa should be revoked.
He is said by the Department to be a dual citizen of Italy and Morocco (ST page 97-101). The reviewable decision is to the effect that he should be deported to one of those countries, with Italy being a more likely destination because of the greater likelihood that he may be able to receive proper medical treatment for his drug addiction and schizophrenia in that country. That is the decision which I am to review. The case came before me for hearing on two days immediately prior to the Easter break and my decision must be given by 3 May 2022, otherwise the reviewable decision will be taken to be affirmed.
I have the choice between three options: to affirm the decision, to set the decision aside and substitute a different decision, and to set the decision aside and remit the matter to the Department for reconsideration. For reasons explained below, I have decided to follow the third option.
Direction 90 binds decision-makers and the Tribunal under s.499 of the Migration Act, 1958. The weight to be given to each such consideration is a matter to be determined by the decision-maker together with other relevant matters suggested by the circumstances of the case, or which have been the subject of representations made by the applicant. For reasons explained below, it is not possible at this time to be satisfied about several relevant matters.
The applicant appeared before me unrepresented. The mother gave evidence as well as the applicant. No other oral evidence was called.
An Italian interpreter assisted as required with the evidence given by the applicant and by his mother.
The case was not prepared for hearing by or on behalf of the applicant, as it would have been if he had competent representation. The applicant told me that he is prepared to enter into a place in the community where he can be weaned off his drug habit and given psychiatric treatment for his schizophrenia. At the present time, such treatment has not been arranged for him, although the applicant’s mother believes that it may be able to be arranged within several weeks, which is likely to require more evidence to be heard in the Tribunal, and that evidence will not be capable of being received by the Tribunal before 3 May 2022. The mother mentioned that Jeffrey House will apparently receive him. I have no evidence concerning that institution.
Moreover, the records of no psychiatrist or psychologist from International Health and Medical Services (IHMS) while the applicant has been at Villawood were placed before the delegate or this Tribunal although it is apparent that interactions have taken place between IHMS and the applicant while he has been at Villawood. The applicant has been taking ice fairly regularly in Villawood, and the evidence indicates that it is readily available there. The effect of his detention to date is that apart from short periods during his detention when he has been treated in hospitals, he has had no medical treatment for his addiction or his schizophrenia, and has been able to maintain his addiction in detention because of the availability of ice there. He has prescriptions for anti-psychotic medication arising from his previous interactions with NSW Health, but his behaviour in detention suggests that he has not been compliant with his medication while in detention. In addition, no records from the various hospitals to which he has been sent since March 2021 were apparently before the delegate and were not filed in this case under s.501G of the Act.
The Department recorded that the applicant obtained a new Italian passport for 10 years from 25 February 2020 (ST page 97).
At the present time, his return to Italy would be very problematic. His mother told me that she would not go back to Italy with him. His father, who lives in Italy, is estranged from him, and it seems, cannot be relied upon to give him needed assistance if he is sent back to Italy. His younger sister is here on vacation with her young daughter, and will apparently return to Italy. According to various documents in the G documents, she is unlikely to be able or willing to provide him with any assistance in Italy. His mental health problems are clear and he has from time to time in the past stopped taking his antipsychotic medication. His present state of addiction is also clear and it is likely that he would resort to stealing or other criminal activity to feed his addiction in Italy, as he has in this country. His drug dependency and his schizophrenia mean that he will not be able to look after himself if returned to Italy or Morocco.
By contrast, his mother is willing to provide him with assistance, and he is known to NSW Health and may obtain assistance with his mental health and his addiction if he is released from detention and proper arrangements are made for him outside Villawood.
Consideration could be given by a decision-maker to revoking the cancellation of his visa and releasing him from detention if he in fact has proper accommodation in some institution, where there is reason to believe that he may be rehabilitated from his drug addiction and given consistent counselling to ensure that he takes his medication, and given him such other treatment as is available for his schizophrenia.
His addiction to ice seems to have been maintained at Villawood, because ice is available there. The G documents do not suggest that any steps to rehabilitate the applicant from his drug addiction have taken place in Villawood.
His schizophrenia has led to odd behaviour at Villawood, and as mentioned below, he has been treated at IHMS for injuries inflicted by Serco officers, and by other detainees.
Persons in detention with mental diseases have in the past been sent from detention to mental health institutions, and a reported case referring to that decision having been made by the Commonwealth is S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; (2005) 143 FCR 217 (Finn J). Finn J began his reasons by referring to what was said by Gleeson CJ in Behrooz v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2004] HCA 36; (2004) 208 ALR 271 at [21]: “Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort.”
His Honour described the duty of care owed to persons in detention with mental diseases as a duty to take reasonable care, including by the provision of psychiatric services. But for the Commonwealth having caused the applicants to be removed to an institution under the South Australian Mental Health Act, rather than leaving them in detention, his Honour indicated that he would have granted appropriate injunctive relief.
Finn J remarked in that case that but for the fact that the two applicants before him had been sent by the Minister out of detention and into a mental health institution, orders would have been made by the Court.
I am not sure whether consideration has been given by the respondent to itself causing the applicant to be sent to an appropriate institution for his rehabilitation, instead of leaving him in Villawood, as occurred in the S case, heard by Finn J.
Another Federal Court decision to a similar effect is MZYYR V Secretary, Department of Immigration and Citizenship [2012] FCA 694; (2012) 292 ALR 659; (2012) 129 ALD 331 (Gordon J), where her Honour granted interim interlocutory relief at the suit of a detainee with mental health issues for particular psychiatric treatment to be given to the detainee.
In Kozarov v State of Victoria [2022] HCA 12, a case involving a breach of the duty of care of an employer to its employees, prolongation and exacerbation of mental diseases was treated as a breach of an analogous duty of care.
An attempt to bring about necessary treatment of the applicant was made by the Mental Health Review Tribunal (the MHRT) on 15 December 2020. The MHRT dealt with him at a time several months after he had begun his only term of imprisonment at Silverwater. He was sentenced by a local court to imprisonment for twelve months from 22 September 2020, with a non-parole period of six months, which was due to expire on 21 March 2021. The MHRT stated that he has a diagnosis of schizophrenia and substance use and made a forensic community treatment order due to expire no later than 14 December 2021, to be reviewed on 14 June 2021.
The goals of the treatment were:
·Better control of symptoms through counselling, psycho-education and medication use;
·Stability of mental state;
·Increased independence in taking medication and other aspects of self care;
·Increasing therapeutic relationships with the treating team and working collaboratively to achieve good mental health;
·Taking responsibility for taking oral medication with a view to discharge from the community treatment order;
·Continuity of treatment on release into the community.
In relation to the responsibilities of the staff, paragraph 4 stated that if the applicant was released from prison prior to the expiration of the community treatment order, the psychiatric case manager or delegate will transfer the care of the community treatment order to his nominated community mental health team.
The applicant was given obligations to accept the treatment and/or medication as prescribed or varied by the treating psychiatrist. He had to attend upon the psychiatric case manager as required, provide a blood test and urine samples as requested.
The applicant was released from Silverwater on 21 March 2021, but was immediately taken into detention in Villawood, because on 9 November 2020 the department wrote to the applicant at Silverwater stating that his bridging visa granted on 31 August 2020 was cancelled on that date under s.501(3A) of the Migration Act1958, and inviting the applicant to make representations for the revocation of the cancellation.
Thus, instead of the applicant being dealt with under the MHRT’s community treatment order upon his release from prison, he was taken to Villawood, where the applicant’s addiction to ice and the adverse consequences of his mental disease may have been prolonged and exacerbated.
Some reports of what occurred in detention appear from Serco reports included in the G documents. They are to be found at G2, pages 6564-95, covering the period from 27 August 2021 to 17 November 2021, but not thereafter. That is, they are some five months out of date.
In that period, the reports indicate that he was hearing voices, that he took a mobile phone from another detainee and tried to sell it, that the other detainee said he would stab him, that on multiple occasions Emergency Response Team officers used force to escort him, either the Two Handed Escort Position, or mechanical restraints such as a “body belt”, on some occasions injuring him and requiring visits to the IHMS nurse for medical treatment, that he was involved on a number occasions in assaults upon or by other detainees, that he was involved in what is described as abusive and aggressive conduct with Serco employees, that he was put on several occasions in to other parts of Villawood “for the good order of the centre”, that he was from time to time sent by ambulance under escort to local hospitals at Auburn and elsewhere, for some kind of emergency treatment, that he threatened to jump off the top of a building unless he was released from detention, that he slept in the multi-faith room because he felt unsafe in his accommodation, that he used bad language with Serco officers, that he was involved in physical altercations with other detainees, suffering injuries himself, that he assaulted Serco officers and was restrained, that another detainee reported that he was masturbating, that on an occasion he hit another detainee with a closed fist, over cigarettes, and the applicant was treated for an abrasion to his knee by an IHMS nurse, that an IHMS nurse contacted ambulance officers who took the applicant offsite on 15 November 2021. The Serco records also state that the applicant was scheduled under the Mental Health Act by IHMS on 16 November 2021. I discuss below a NSW Health report made at about this time.
The applicant’s mother told me that he regularly took ice at Villawood, which the applicant confirmed in evidence. The Serco records placed before the delegate and the Tribunal make no mention of any ice having been taken by the applicant at Villawood.
The G documents include no IHMS records, and no Serco reports after 17 November 2021.
There is within the G documents a document from the mental health unit at Liverpool Hospital, having been admitted on 17 November 2021. It is on the letterhead on NSW Health South Western Sydney Local Health District, from a social worker. It states that the applicant is well known to Liverpool mental health service, having been admitted on three occasions to Liverpool HDU in 2019 and 2020. It records that the mental health nurse (presumably from IHMS at Villawood) caused him to be scheduled due to his hearing voices, evident thought disorder, with posturing and mannerisms evident in assessment, that he stares/freezes for a time, and claps and gyrates in a peculiar fashion. The mental health nurse also reported that the applicant is behaving in an inappropriate and intrusive manner and is being assaulted by other inmates due to this.
The document states that he requires treatment but showed marked improvement in the ward, with plans to step down to an acute mental health ward. It concludes by stating that the applicant’s “unique and complex experience of mental illness requires ongoing treatment” for him “to foster his own personal recovery”. It states that without these supports, “he is at acute risk of harm to self, risk of harm to others and risk of misadventure”.
Such remarks suggest that his return to Italy or Morocco at the present time is fraught with danger.
The absence of IHMS records from the G documents and the absence of up to date Serco records suggest to me that assuming the respondent has complied with s501G of the Migration Act, the reviewable decision must have proceeded without sufficient documentation then available. The reviewable decision was dated 7 February 2022. That fact, together with the unavailability to the Tribunal of the records to which I have referred is one reason why I find myself unable to consider what order may be appropriate in substitution for the reviewable decision.
The circumstances of the applicant indicated by the evidence suggest that the return of the applicant to Italy or Morocco may expose him to great risk, not excluding the risk of his death by overdose or misadventure, and will deprive him of the considerable benefit he was due to obtain by reason of the MHRT’s orders of 15 December 2020, of which he was deprived by being taken into detention in March 2021.
Remitting the matter for reconsideration will also enable the applicant’s mother, with appropriate advice, to set out a plan for the applicant to be admitted to Jeffrey House or some other institution, with a view to the kind of steps envisaged in December 2020 by the MHRC being taken. Since the orders made by the MHRC have now expired a fresh order from the MHRC may be necessary.
Although the effect of setting aside and remitting the reviewable decision will be to expose the applicant to a longer period in detention, that is a course that cannot be avoided in the circumstances of the case, with a need to resolve the present review in 84 days.
Representations were made in support of the revocation of the cancellation on the grounds that his mother was told by his father that if he comes back to Italy, his father would kill him. Neither the applicant nor his mother gave evidence of such a conversation, and I am unable to make findings about it. However I have found that returning the applicant to Italy would expose him to great risk, even including the possibility of his death.
The applicant is plainly in need of extended treatment to free him from his drug addiction and to treat him for his schizophrenia. To contemplate returning him to Italy or Morocco without such treatment significantly bears of the question whether there is another reason to revoke the cancellation of his visa.
The applicant gave every indication of living in a fantasy world when giving evidence. He said that he had not one but two children, by different mothers. He said that the three year old daughter presently here on vacation with his sister was in fact his daughter by a lady named Sophia, and that Sophia had left the baby with his sister since her birth. The mother gave evidence that she was present at the hospital when her daughter gave birth in Italy. She also gave a different age for her grand daughter who will turn five next December.
The applicant said he is a rapper, and that he has $5 million, or $15 million in the USA.
He also named another lady whose child was his, who lives in Sydney at an address he could not remember in Blacktown. The name of the lady which he gave is a Japanese cartoon character’s name.
The applicant’s mother referred to the statements that he has children and has money overseas as things he thinks which are not true. I accept the evidence of the applicant’s mother.
The family violence convictions in the applicant’s record relate to an apprehended violence order obtained by police to protect the applicant’s mother. The mother said that she asked the police to have the apprehended violence order cancelled. Even if as the respondent submitted, there is no evidence of a cancellation having occurred, the local court would be able to make such an order on the mother’s application.
Before the delegate or before the Tribunal on further review, consideration may be given to Direction 90 in due course, including to family violence matters.
Further treatment of the applicant in Australia, when properly proved, will be highly relevant to the decision maker considering whether to revoke the cancellation of his bridging visa.
For all of the reasons above, the reviewable decision will be set aside and the matter will be remitted to the respondent for reconsideration.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
........................[sgd]................................................
Associate
Dated 27 April 2022.
Date(s) of hearing: 13 & 14 April 2022 Date final submissions received: 22 April 2022 Applicant: In person Solicitors for the Respondent: Clayton Utz
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