Talafua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 364 (27 January 2022)

Last Updated: 4 March 2022

Talafua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 364 (27 January 2022)

Division: GENERAL DIVISION

File Number: 2021/8336

Re: Faitala Taylor Talafua

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Senior Member J Rau SC

Date: 27 January 2022

Place: Adelaide

The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s Visa be revoked.

..........................[Sgnd].............................
Senior Member J Rau SC

CATCHWORDS

MIGRATION – mandatory cancellation of Class TY (subclass 444) visa under section 501CA(4) - where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – interests of minor children – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member J Rau SC

27 January 2022

INTRODUCTION AND BACKGROUND

1. The Applicant seeks a review of the decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (the “Act”) on 8 November 2021, not to revoke the mandatory cancellation of his Class TY (subclass 444) visa (the “Visa”).

2. The hearing was held on 17 and 18 January 2022. The Applicant was represented by Joel McComber of Sentry Law and the Respondent by Alex Chan of Sparke Helmore, both appearing via Microsoft Teams. The Applicant gave evidence via Microsoft Teams from Brisbane Immigration Transit Accommodation and called the following witnesses:

(a) Faitala Talafua (the Applicant);
(b) “MT” (the Applicant’s de facto partner);
(c) “Child A” (the Applicant’s son);
(d) “Child B” (the Applicant’s daughter); and
(e) “TT” (the Applicant’s daughter).

3. The Applicant did his best to assist the Tribunal. Some of his evidence was vague and/or confusing, especially regarding the circumstances of his offending. This is perhaps not surprising, given his mental health issues. MT presented as a truthful witness. Her evidence was helpful in giving a close, external observer’s perspective on the Applicant’s illness.

4. The Applicant was born in Apia, Samoa and is currently 43 years of age. He has an older brother, older sister, and a younger brother. When he was about one year old, his family moved to New Zealand. His younger brother was born there. In 1981, the Applicant and his family became New Zealand citizens.

5. When the Applicant was 16 or 17 years old, he was diagnosed with schizophrenia. He has been receiving treatment for this illness, in his words, “with varying degrees of success”^[1], ever since. In evidence he stated that he has a “relapse” if he takes drugs, alcohol, or stops taking his medication. This was confirmed by MT, who reported that she had observed a pattern in the Applicant’s illness. First there would be a “trigger”. His consumption of alcohol and/or cannabis would increase. He would not sleep, he would smoke a lot, and he would start talking to himself. He would become non-compliant with his medication and his gambling problem would get worse. He was admitted to hospital to manage his mental health issues in 2000, 2002, 2007, 2008, 2010, and 2019.^[2] He also complained about anxiety attacks.

6. It is no criticism of the Applicant, but the Tribunal would have been greatly assisted in its task if an expert medical witness/s were called. As it is, the Tribunal must rely on the Applicant’s subjective evidence, the observations of MT, and several medical reports prepared for different purposes.

7. The Applicant disliked school. He had difficulty with maths and learning to read and write. He left school at the age of 14 or 15 and tried to get work.

8. On 10 August 1997 when the Applicant was 18 years of age he relocated to Australia with his family, remaining onshore initially for two months and then returning on 22 January 1998 permanently at the age of 19. He has been on a disability support pension since his early adulthood, but he has had occasional work of a seasonal or casual nature.^[3]

9. Shortly after arriving in Australia, he entered into a relationship and twin daughters (“GT” and “TT”) were born. They are currently 22 years of age. Their mother died when the twins were only 2 or 3 years of age. The Applicant arranged for his parents and extended family to look after the twins as their primary carers. He maintained a close relationship with them. They now live in Mackay, Queensland. TT lives with the Applicant’s younger brother, “ST”. She plans to move to Brisbane soon for her studies. GT lives with her boyfriend/partner and has very recently had a son.

10. In about May 2004, the Applicant commenced a relationship with MT. He had known her through family and friends since about 1999. She was working as a disability carer prior to the Applicant’s incarceration. The Applicant generally did not work and performed home duties to support the family. This arrangement was terminated when the Applicant was incarcerated. Since then, she has been on job seeker. She remains his partner although they are not married. They have two children, a son “Child A” now aged 16, and a daughter “Child B” now aged 15. Until the time of the Applicant’s imprisonment on 27 February 2020, he lived with MT and their two children. If the Applicant were to be released into the community, he would return to live with them. He would resume his role as a primary home-maker and carer.

11. On 19 April 2003, the Applicant robbed a BP service station at Redbank Plains. He took a packet of cigarettes and the contents of the till which was approximately $385. The circumstances of this offending as set out in the relevant statement of facts is as follows:

11. “Offending – 2003

11. Redbank Plains robberies

11. 2. On or about 19 April 2003 at approximately midnight, the defendant entered a BP petrol station at Redbank Plains. The defendant approached the front counter and asked the employee, [name] [DOB] for a packet of cigarettes. The employee turned around to grab the cigarettes and when she turned back to face the defendant he held his left hand on the counter in the shape of a gun pointing at the employee and said, “give me all the money.” The employee thought the defendant was joking, but the defendant repeated, “give me the fucking money.” The employee opened the till and the defendant reached across and moved the employee’s wrist out of the way and grabbed as much money as he could. In total the defendant took the cigarettes and approximately $200.00 in Australian currency. (Count 1) The defendant later told the police that he spent the money on drugs and alcohol.

11. 4. The employee provided a description to police of a man who was about 6ft tall, with dark skin and a stocky build. The man had brown hair protruding from a hoodie.”^[4]

12. On 24 April 2003, the Applicant robbed a 7-Eleven store at Bellbird Park. He took a packet of cigarettes and the contents of the till which were approximately $100. The circumstances of this offending as set out in the relevant statement of facts is as follows:

12. “Bellbird Park armed robbery

12. 6. On or about 24 April 2003 at night, the defendant entered a 7-Eleven at Bellbird Park. The defendant approached the front counter and asked the employee, Branko Belic (DOB 05/11/1959) for a packet of cigarettes. When the employee placed the cigarettes on the counter, the defendant said, “I want all your money.” The employee observed a small pocket knife in the defendant’s left hand. The defendant did not draw attention to the pocket knife. The employee opened the cash register and the defendant reached across the counter and took the till. He grabbed out the notes and coins from the till, which totalled approximately $90.00 (Count 2). The employee described a heavy set man around 190cm tall, of Islander appearance wearing a hoodie covering his head. The defendant later admitted to police that on this occasion he only took approximately $80.00 worth of cash and that he spent the money on drugs and alcohol.”^[5]

13. On 20 May 2003, the Applicant again robbed the BP service station at Redbank Plains. Again, he took a packet of cigarettes and the contents of the till. Computer records do not indicate how much money was taken. The person working at the service station at the time of the incident was the same person who was the victim of the offending on 19 April 2003.^[6] The circumstances of this offending as set out in the relevant statement of facts is as follows:

13. “3. On or about 20 May 2003 at night the defendant returned to the same BP petrol station. The same employee was on shift at the time, and almost immediately recognised the defendant from the earlier robbery. The defendant was wearing a dark hoodie, and again approached the front counter and asked for a packet of cigarettes. The employee again turned around and when she turned back to face the defendant he again demanded “give me all the money.” The employee took out the till and threw an unknown amount of money at the defendant (less than $400.00). The employee told the defendant to “fuck off” and the defendant left the store with the money. (Count 3). Between the year 2000 and the year 2020, the applicant committed numerous driving offences. These offences included exceeding the speed limit, failure to stop and a red light and driving whilst disqualified.”^[7]

14. The Applicant gave evidence that he was “hanging out with the wrong crowd” at the time and consuming a lot of drugs (cannabis) and alcohol. He was spending $50 per fortnight on cannabis. He was hearing voices, but can’t recall what they were saying. The voices were from “evil spirits” pretending to be dead relatives and speaking in Samoan. It seems that this offending corresponded with him suffering some sort of relapse.

15. Queensland police records indicate that the Applicant was the subject of a domestic violence complaint on 29 November 2008. The relevant particulars as recorded are as follows:

15. “19.A. Details of most recent incident (include dates if possible):

15. It appears that both the aggrieved and respondent have begun consuming alcohol from lunchtime today following the graduation of the aggrieved from a security course. Both parties have consumed a large amount of alcohol. A few hours later the aggrieved has left and attended Brisbane City with friends to continue with the celebrations. The respondent has remained behind and continued to consume alcohol. At approximately 1:00am the respondent has attempted to contact the aggrieved on her mobile phone to find out where she is. During this phone call the respondent has formed the opinion that the aggrieved was having an affair and became enraged. The aggrieved has arrived back in Goodna at approximately 1:50am and attended a friends residence, which is in walking distance to her residential address. The respondent has walked to this address with a large kitchen knife in his hand and then threatened to injure the aggrieved if she did not return home immediately. The respondent has then walked back home. Frightened, the aggrieved did not return home. The respondent has then returned and again threatened to injure the aggrieved with the knife if she did not return home immediately. The respondent then walked b ack to his residence a second time to await the arrival of the aggrieved. When the aggrieved did not return home he attended for a third time with the knife and threatened to kill the aggrieved and her two young children. The respondent then pushed the aggrieved to the ground, stood on her head and leaned over her with the large knife and threatened to stab and kill her. The respondent then walked back to his residence to await her arrival home. The aggrieved then contacted Police and reported the matter. The respondent advised Police that he had threatened the aggrieved with a knife because he thought that she was having an affair with another male person.”

16. A protection order was made on 22 December 2008. The complainant on this occasion was MT who is the Applicant’s current partner.^[8] It appears that his behaviour corresponded with him becoming non-compliant with his medication regime.

17. The Applicant and MT agreed in their evidence that this event occurred. Both associate this with a relapse. Both stated that this was an isolated incident. MT stated that she did not press for the protection order and that it had been sought by the police. They resumed co-habitation, despite the order. There have been no further such incidents.

18. On 13 December 2018, the Applicant committed two robberies. The particulars of these are as follows:

“Redbank Plains armed robbery

7. On 13 December 2018 at approximately 1.15am, the defendant entered a 7-Eleven petrol station at Redbank Plains. The defendant approached the employee, [name] [DOB] who was working at the store counter and asked for a packet of cigarettes. The employee turned around to grab the cigarettes and when he turned back, the defendant removed a 30-50cm silver knife from the front of his pants. The defendant told the employee give him the money from the till. The employee removed the till and put it on the counter. The defendant grabbed all of the cash notes from the till and put them in his pocket. The defendant then left the 7-Eleven and the employee contacted the police. In total, the defendant took the cigarettes ($30.00 value) and $290.00 in Australian currency (Count 4).

8. The employee gave police a description of the defendant, being a 35-40 year old man of Islander appearance, with a solid build and a light brown beard. The employee told police he was wearing a dark blue t-shirt, dark coloured pants, black sunglasses and cap, and a red and white cloth around his neck. The incident was captured on CCTV, and depicts a bearded man in black clothing, wearing sunglasses and a cap and a blue and white bandana around his neck.

8. The defendant then went home threw his clothing in the bin, shaved his face and changed his clothes. He later told police that he did this, "because of what I did." The defendant went to a tavern in Goodna and spent the money that he stole on the poker machines at the tavern. The defendant spent all of the money before returning home, changing his clothes again and leaving to rob another store. The defendant later told police that this 7-Eleven was located at the same site as the earlier robbery involving the then BP petrol station from 2003.

Facts of the Charge

Charge Two

The defendant in this matter is Faitala TALAFUA.

The victim in this matter is Shree Salasar Balaji Pty Ltd trading as 7 Eleven Redbank Plains which is located at 355 Redbank Plains Rd Redbank Plains.

The witness in this matter is [redacted]

On the 13th day of December 2018 at approximately 1:15am the defendant has parked his vehicle, a white coloured Holden commodore bearing Queensland registration 828XFF at the side of the Redbank Plains Tavern. The defendant has then walked to the service station and gone in to the service station.

The defendant has then attended the front counter and asked for a packet of Peter Jackson Original cigarettes. The staff member has grabbed the packet of cigarettes and placed them down on the front counter for the defendant.

The defendant has then produced a large knife from his pants and held the knife towards the staff member. The defendant has then demanded that the staff member open the cash till and put it on to the front counter. The staff member has complied and placed the cash till on to the front counter and the defendant has then grabbed all of the notes from inside of the till to the amount of $300. The defendant has then grabbed the packet of cigarettes from the counter and left the store on foot, proceeding back to his vehicle to leave the area and go to The Cecil Hotel to use the stolen cash to gamble. The defendant has then returned to his residential address in [...] and changed his clothing and shaved his beard before disposing of the clothes he was wearing by putting them in the bin.

The defendant has then proceeded to commit another armed robbery offence as per charge one. On the 12th day of January 2019 the defendant attended Goodna Police Station voluntarily and participated in an electronic record of interview where he made full admissions in relation to the armed robbery of the Din more 7 Redbank Plains and another 7 Eleven store after this one.

The defendant was then arrested and transported to the Ipswich Watch house where he was released on a bail undertaking to appear in the Ipswich Magistrates Court on the 5th day of February 2019.”^[9]

“Dinmore armed robbery

9. On 13 December 2018 at approximately 4.20am, the defendant entered a 7-Eleven at Dinmore. The defendant approached the employee, [name] [DOB] who was working at the store counter and asked for a packet of cigarettes. The employee scanned the cigarettes and placed them on the counter. The defendant then pulled out a knife from the front of his pants and said, "Open the till. Give me the till." The defendant told the employee to "hurry" repeatedly. The defendant told the employee to, "Hand me the till". The employee took out the cash till and placed it on the counter. The defendant then removed the notes and coins from the till. In total the defendant took the cigarettes and

$300.00 in Australian currency (Count 5).

10. The employee gave a description to police, being a man around 40 years old with a heavy build, tanned skin and no facial hair. The employee said the man was wearing a black hooded jumper with a white motif, and spoke with an accent. The incident was captured on CCTV.

Facts of the Charge

Charge One

The defendant in this matter is Faitala TALAFUA.

The victim in this matter is Om Sai Australia Pty Ltd trading as 7 Eleven Dinmore which is located at 29-31 Brisbane Rd Dinmore.

The witness in this matter is [redacted]

On the 13th day of December 2018 at approximately 4:20am the defendant has parked his vehicle, a white coloured Holden Commodore bearing Queensland registration 828XFF in New Chum Rd Dinmore which is behind the 7 Eleven store. The defendant has then walked to the service station and waited for the witness staff member to open the doors.

The defendant has then attended the front counter and asked for a packet of Choice Signature Bold cigarettes. The staff member has grabbed the packet of cigarettes and placed them down on the front counter for the defendant.

The defendant has then produced a large knife from his pants and held the knife towards the staff member. The defendant has then demanded that the staff member open the cash till and put it on to the front counter. The staff member has complied and placed the cash till on to the front counter and the defendant has then grabbed all of the notes from inside of the till and the $2 coins to the amount of $300. The defendant has also then grabbed the packet of cigarettes and left the store on foot, proceeding back to his vehicle to leave the area and go home.

On the 12th day of January 2019 the defendant attended Goodna Police Station voluntarily and participated in an electronic record of interview where he made full admissions in relation to the armed robbery of the Dinmore 7 Eleven store and another 7 Eleven store prior to this one.

The defendant was then arrested and transported to the Ipswich Watch house where he was released on a bail undertaking to appear in the Ipswich Magistrates Court on the 5th day of February 2019.”^[10]

19. The Applicant explained in evidence that he was gambling on poker machines at the time. He had been a problem gambler for some years. He had lost the money that he had set aside for Christmas presents. He decided to rob a service station to get some cash, then play the poker machines to increase this sum. To say that this was a transparently foolish idea, at every level, is an understatement. He did plan the offending to some degree, collecting a kitchen knife from home to intimidate the cashier and between the two offences, shaving off his beard to change his appearance. The second offence occurred because he had inevitably lost the money that he stole on the first occasion, on the poker machines.

20. On the evening of 13 December, MT’s brothers attended at their home. They had seen a news report of the robberies on Facebook. They recognised the Applicant and confronted him. He admitted that it was him. MT encouraged him to give himself up to police, although she later advised against this because of what she feared would be the consequences. The Applicant felt guilt and remorse. He decided to turn himself in.

21. On 12 January, the Applicant made an unsolicited contact with police to hand himself in and make full admissions. At that point in time, the Applicant was not even a suspect in any of the five robberies set out above. Given the notoriety of the 13 December robberies on Facebook, this may or may not have continued to be the case in respect of those. The 2003 robberies were unlikely ever to have been solved. The agreed statement of facts records that:

“Detection

10. On 12 January 2019 at 8:39am, the defendant called 000 and advised that he wanted to hand himself in, he confirmed his name, phone number and address, and advised the call operator that he had robbed a petrol station in Redbank and a petrol station in Dinmore, last year, before Christmas. He asked the operator to send someone around ASAP and advised the operator that he had no way of going to a police station.

11. Later that morning police attended the defendant's address and transported the defendant to the Goodna police station where he made full admissions to the offending relating to the 2018 incident, including describing how he committed the robberies and his movements in between the robberies. The defendant also told police that he was involved in other robberies occurring many years earlier.

12. On 14 January 2019 the defendant participated in a further interview with police where he made full admissions to the offending occurring in 2003, but for the offending occurring 20 May 2003 which he could not remember. During the interview the defendant again told police how he committed each of the robberies in 2003 and further described his movements in between the robberies to police.

13. A DNA sample was obtained from the defendant, which matched a DNA profile on a bandana dropped by the defendant following count 4. The bandana was located in an area near the carpark at the 7/11 petrol station at Redbank Plains.

14. On 4 February 2019 the defendant was served with a notice to appear in relation to all of the matters.”^[11]

22. The Applicant was subsequently involved in numerous breaches of bail on 14 January 2019, 16 January 2019, 1 March 2019, 17 July 2019, 30 September 2019, 2 December 2019, 13 December 2019, 8 January 2020, and 19 February 2020.^[12] These were essentially failures to attend or report as required. He explained these on the basis of the effects of his medication. This is not a good explanation for not making any contact, but I note that his mental health was poor at this time.

23. On 17 June 2019, the Applicant had a mental health assessment under the Mental Health Act 2016 (Qld). He was assessed as being mentally fit to stand trial.^[13]

24. On 9 August 2019, the Applicant was found to be in possession of 4 grams of cannabis.^[14]

25. On 9 January 2020, the Applicant was seen by psychiatrist Dr Jeremy Butler for the purpose of assessing his fitness to stand trial. He produced a report dated 13 February 2020 and concluded that he was fit to stand trial. His report contains, inter alia, the following:

“Dear Mr...,

This report is in response to your request for an examination of Mr Talafua with respect to several charges he is facing. In particular, you have asked me to comment upon his mental condition, the issue of unsoundness of mind, whether he is fit for trial, and what form of treatment he may require. I am a psychiatrist registered with the Australian Health Practitioner's Regulation Agency and am a member of the Faculty of Forensic Psychiatry, the Royal Australian and New Zealand College of Psychiatrists.

Mr Talafua understood the purpose of the interview and consented to it.

The following material was used in the preparation of this report:-

1. Interview with Mr Faitala Talafua on 9th January 2020

2. Indictment and Schedule of Facts and QP9 pertaining to the alleged offending

3. Criminal and traffic history in Queensland of Mr Talafua

4. Transcript of Record of Interview between Faitala Talafua and Police on 12th January 30 2019 and 14th January 2019

Recent Mental Health Functioning

Mr Talafua said he has been diagnosed with a schizophrenic illness for which he has been receiving treatment for over 20 years. He said he is currently prescribed Zuclopenthixol 200mgs every fortnight as well as Risperidone 1mg at night, and Benztropine daily for side effects. He said he understands schizophrenia to be an illness characterised by feeling confused and having almost multiple personalities as if possessed. However, he was also aware that other symptoms such as hearing voices and feeling paranoid are also aspects of the illness. He said he has no ongoing symptoms. In particular, he denied experiencing voices, persecutory ideation, a sense of being possessed, thought alienation or referential ideas. He did not believe that he had either special powers or abilities and did not describe any hypomanic symptoms. He believed that as long as he has his depot Zuclopenthixol on time, his symptoms are manageable. However, he said that if he delays in having his fortnightly injection, he may begin to develop panic attacks which can take several days to completely resolve. He said that each attack is manifested by choking, palpitations, tremor and anxiety and they last for several hours. He was not aware that such attacks occurred in any specific context or were triggered by any specific external phenomena.

He denied experiencing severe symptoms of depression or generalised anxiety. He also did not describe any obsessive-compulsive symptoms. He described normal sleep, appetite and energy and in fact, indicated that he was hopeful of obtaining some work in the near future. He said that previously he had some vague suicidal ideation many years ago when depressed but has not had for many years. He said that symptoms of depression are usually transient and have not caused him to have any significant impairment.

Previous Mental Health Functioning

As aforementioned, Mr Talafua has suffered from schizophrenia which he said was first diagnosed when he was sixteen years of age. He said at the time he began speaking fluently in Samoan and was berating his family because he believed that they had upset ancestors. He recalled, "I was just not myself." He said he was admitted to hospital in New Zealand for approximately six weeks.

Subsequently, he has been taking several medications but was not able to recall the specifics of his previous treatment other than that he had been on depot medication for many years. He said that his last admission was approximately four or five years ago and had resulted from his having delayed having his depot injection. He believed that over a period of ten years, the longest he had gone without his medication was between one and four months. He recalled that during a phase around ten years ago, he was admitted on two occasions each year. He believed that he became unwell when he would feel over sedated and would reduce his medication. He recalled having unusual symptoms such as hearing voices, believing that he was receiving messages from the television and believing that he was on some sort of mission involving the army secret service.

With respect to historical symptoms of depression, he said he had struggled with some depression when he separated from his first partner and had limited contact with his children. Also, he believed that in 2018 following the death of his father, he had a difficult grief reaction and was distressed for at least several months.

Mr Talafua acknowledged that during 2018 in the aftermath of his father's death, he struggled with a grief reaction and resorted to gambling on poker machines as a form of emotional release. He said that he would go to the local hotel on a regular basis and would spend all of his pension. He said that ultimately his partner discovered his gambling habit which caused some conflict. He said that he has not gambled and has not had any enduring cravings to do so since his offending.

Relevant Drug and Alcohol History

Mr Talafua said he has smoked for many years and may go through half a pouch of tobacco per day.

He said he commenced smoking cannabis around the age of fourteen and was using it daily for at least several years. He denied that it caused him to either feel paranoid or to hallucinate. He believed it helped to calm his emotions particularly during his adolescence when he had difficulty finding work and processing stress. He said he was also using it consistently during his first long-term relationship. He said he has not used cannabis for several years and has not required counselling to maintain his abstinence.

He began drinking at the age of sixteen and for several years, would try to get drunk as frequently as possible. He said that he believed at the time that the world was a better place from inside a bottle. As aforementioned, he was stressed about finding work and generally feeling relaxed. He said that he now only occasionally drinks during a time of celebration but may have up to six or twelve stubbies during such events. He denied drinking regularly or having binges.

He denied ever having abused ketamine, opiates, MDMA or stimulants such as "ice" or "speed".

Relevant Developmental History

Mr Talafua said that he is the middle of a sibship of five and grew up near Auckland, New Zealand with his parents who he believed to have been caring considerate people even though his father suffered from alcohol abuse during Mr Talafua's early childhood. He said that there was no ongoing domestic violence and he felt safe within the family home. He did not believe that he had experienced any difficulties learning to walk or talk. However, he said he hated school because he had difficulty concentrating and learning to read or write. He said he also had difficulties with maths and he found this frustrating. He said that he often felt like a bouncy ball at school and his symptoms suggest he may have had an attention deficit hyperactivity disorder. He said he left school around the age of fourteen or fifteen and subsequently tried to obtain work. He continued to live with his family and he emigrated to Australia when he was about eighteen years of age.

He was placed on the disability support pension in his early adulthood but nevertheless, has been able to have occasional employment in demolition, farming and as a storeman. He said that most of the jobs were seasonal or casual and he has not had any sustained employment. He has worked in both New South Wales and Queensland and has resided back in Queensland since early 2018.

He has had two long-term relationships, the first of which lasted five years and the second of which has lasted for approximately fifteen years. As aforementioned, he had two children from his first relationship who are now adults. The children from his second relationship are aged fourteen and thirteen. He said that he has a close supportive relationship with his current partner [MT].

Relevant Social History

Mr Talafua resides at [...] with his partner and two children. As aforementioned, he is on the disability support pension and has not recently had regular employment His daily routine consists of reporting to the police station, taking his children to school and attending to household and backyard chores. He said he cooks and cleans and prepares the evening meal for his family. Otherwise, he said he enjoys going to the gym and listening to music. He does not have any other particular hobbies. He said he is able to accompany his family on outings and has no difficulty shopping.

Relevant Forensic History

Apart from some traffic violations, Mr Talafua does not have any significant forensic history. He said he has never been predisposed towards aggression or confrontation.

Relevant Medical History

Mr Talafua denied having suffered from any serious illnesses such as asthma, epilepsy or diabetes. He has never suffered any serious head injuries and has not required any surgical intervention.

Relevant Family History

Mr Talafua said that there is no family history of any significant mental illness that he is aware of.

Mental State Examination

Mr Talafua presented as a tall Samoan man who was pleasant and cooperative throughout the interview. He was able to sustain attention without difficulty and some rapport could be developed. Although his affect was slightly blunted, his mood was euthymic. He did not appear to be distressed or agitated at any time during the interview. His thought form was normal and he did not manifest any abnormality of his speech. He did not describe any current psychotic phenomena. I estimate that his intelligence is in the below normal to average range. He was orientated to time and place, could perform Serial 7s and was able to remember three objects without difficulty.

Mr Talafua was aware that he had a serious mental condition i.e. schizophrenia, which was characterised by distressing symptoms that required treatment with antipsychotic medication.

The Nature of the Charges

There are a total of five counts which include two historical accounts of robbery. One historical count of armed robbery and two more recent counts of armed robbery.

Count I-Robbery

It is alleged that on or about 19th April 2003, the defendant entered the BP petrol station at Redbank Plains and asked for cigarettes. When the employee obtained the cigarettes and turned around, that the defendant confronted her by holding his hand in the shape of a gun and demanded money from her. The employee then opened the till and the defendant took approximately $200 in cash. The Statement of Facts states that he later told police that he spent the money on drugs and alcohol.

Count 2-Armed Robbery

It is alleged that on or about 24th April 2003 at Bellbird Park, the defendant entered the 7-Eleven and robbed the complainant whilst armed with an offensive instrument, namely a pocket knife. It is alleged that on 24th April 2003, the defendant approached the counter and asked for a packet of cigarettes. Subsequently he demanded money from the complainant who observed that the defendant was holding a small pocket knife in his left hand which he nevertheless did not draw attention to. Subsequently, the complainant opened the cash register and the defendant reached across and took approximately $90 from the till. It is stated that the defendant later admitted that he spent the money on drugs and alcohol.

Count 3-Robbery

That on about the 20th May 2003 at Redbank Plains, the defendant robbed the same

complainant. It is alleged that the defendant returned to the BP service station on 20th May 2003 and the complainant recognised him. It is alleged that a similar scenario was played out during which the defendant demanded money from the complainant after first asking for a packet of cigarettes. It is alleged that the defendant left with approximately $400.

Count 4-Armed Robbery

That on the 13th December 2018, the defendant entered a 7-Eleven at Redbank Plains and robbed the complainant and was armed with an offensive instrument.

Count 5- Armed Robbery

On 13th December 2018 the defendant entered a 7-Eleven at Dinmore and robbed the complainant whilst armed with an offensive instrument.

Counts 4 and 5 occurred on the same day and the Statement of Facts states that, with respect to the first instance of offending, the defendant entered the 7-Eleven petrol station at Redbank Plains and approached the complainant asking for a packet of cigarettes. It is alleged that when the complainant turned around, the defendant removed a 30cm to 50cm silver knife and demanded money from the till. It is stated that the defendant grabbed all the cash notes up to a value of $290. It is stated furthermore that the defendant went home and changed his clothes before travelling to a tavern at Goodna and spending all of the money on poker machines. It is stated that he then changed his clothes again and returned to the second store at Dinmore where, once again, he asked for cigarettes, pulled a knife from his pants and demanded money from the till. On this occasion, it is stated that he removed approximately $300. With respect to the police detection of the offences, it is stated on 12th January 2019, the defendant called Triple 0 and said he wanted to hand himself in. Subsequently, the defendant engaged in an interview and made admissions to the offending in 2018 and alluded to previous offending. On a subsequent interview on 14th January 2019, it is stated that the defendant recalled two other instances of offending but had no recollection of another instance of offending. It is also stated that a DNA sample from a bandana left at the scene of the offending in 2018 matched the defendant's DNA.

The Defendant's Response to the Charges

In my opinion, Mr Talafua was able to provide a coherent account of the offending which he had acknowledged during electronic records of interviews. He did not appear to be suffering from any mental disorder or to be cognitively impaired.

He recalled that he had gone to the police to hand himself in because he had been feeling remorseful about his behaviour and did not want to hide from his mistakes any longer. He said that his partner had also discovered his offending and she had encouraged him to hand himself in.

With reference to the 2003 charges, he said that his spontaneous memory was limited although he did recall wearing a hoodie, demanding money and walking out. He was aware that he had robbed the BP service station on two occasions and another premise on another occasion. He believed that if he was in the state of mind that he is now, he would not have done it. He believed at that time he was hanging around a "bad circle", was "young and stupid" and was using the money for drugs and alcohol. With respect to the two charges of 13th December 2018, he spontaneously recalled that he had walked in with a knife demanding money and smokes from the Redbank Plains establishment before spending the money on poker machines at a hotel and later going to another 7-Eleven where he again demanded money at knifepoint before going home.

I read out the Statement of Facts to Mr Talafua and he was able to understand the essential details of the allegations. He was aware that they had alleged that he had committed several robberies and that on three occasions he had been armed. He was aware that, even though on one occasion, he had not directly threatened the complainant with a pocket knife, it still counted as an armed robbery offence.

Mr Talafua said that from his recollection that he had not been using drugs or alcohol at the time of the 2018 offences. He was not able to recall whether he would have been drinking or using drugs at the time of the 2003 offences.

Formulation and Diagnosis

In my opinion, Mr Talafua has a schizophrenic illness which would appear to be in complete remission. He does not presently describe any active symptoms of psychosis and does not manifest any significant thought disorder or odd behaviour. Although his affect is slightly blunted, I did not believe that this was particularly significant. From his account, he has previously suffered symptoms which have caused him to feel persecuted and apprehensive. He has required longstanding treatment with oral and depot medication and has relapsed when not using his medication. Additionally, he has had symptoms suggestive of a panic disorder since his adolescence. His treatment with the antipsychotic medication has usually kept these symptoms in check. Although he does not appear to have suffered from any significant or enduring depression, I believe he suffered from a significant grief reaction following his father's death in 2018 and this contributed to his then gambling excessively.

In my opinion, Mr Talafua does not have a personality disorder and is not psychopathic.

In my opinion, Mr Talafua's schizophrenia should remain in remission if he is compliant with antipsychotic medication. Similarly, I believe that Mr Talafua's pathological gambling is recently in remission but there is perhaps some risk that it could redevelop if he was exposed to significant psychosocial stress. In my opinion, if Mr Talafua was to cease his antipsychotic medication, his symptoms of schizophrenia could return and he would more than likely require more intensive treatment and perhaps hospitalisation.

DSM-5 Diagnosis

• Schizophrenia, recurrent episodes presently in complete remission
• Panic Disorder, in remission
• Cannabis Use Disorder, moderate, in complete remission

The Question of Unsoundness of Mind

In my opinion, considering Mr Talafua's lengthy history of schizophrenia, more than likely he would have been suffering from a mental disease at the time of the alleged offending in both 2003 and 2018. However, in my opinion, there is no evidence that any distortion of thinking, hallucinatory phenomena or passivity phenomena contributed to his robbing the complainants. I believe that, with reference to the 2003 offending, that the primary motivation for the offending was to obtain money for drugs and alcohol.

With respect to the 2018 offending, I believe that his pathological gambling was the primary motivation for him to obtaining funds illegally. I do not believe that this reflected any specific influence of a mental disease.

Therefore, I believe that Mr Talafua was not of unsound mind with respect to any of the offending.

Fitness for Trial

In my opinion, Mr Talafua understands the nature of the charges, the evidence supporting them, and why they have been referred to trial. He understands that a trial process is designed to determine guilt or innocence and he also has a satisfactory knowledge of the role of the various participants in a trial process. In my opinion, he understands the difference between a plea of guilty and not guilty and is able to provide an understandable account of the offending and the reasons why he offended. I believe that he has the capacity to adequately attend to evidence presented in Court. I could not detect any significant memory disturbance suggesting that he would struggle with retaining information. I believe therefore, that he has the capacity to competently instruct his lawyer. In my opinion, there is no evidence that there are any symptoms of mental illness adversely affecting his ability to understand and process the evidence.

Therefore, I believe that Mr Talafua is fit to plead and fit for trial.

Summary and Recommendations

In my opinion, Mr Talafua has a longstanding schizophrenic illness that is presently in remission. I believe that if he remains compliant with medication, the risk of his relapsing is very small. I believe that he also has a panic disorder which is also in remission. In my opinion, Mr Talafua was not of unsound mind with reference to any of the offending.

I believe that Mr Talafua is fit for trial.

As aforementioned, I believe that Mr Talafua requires ongoing treatment for his schizophrenia and I believe that this can be continued on the basis of voluntary treatment as an outpatient. I do not believe that he requires any inpatient treatment.

Although I believe that his pathological gambling condition is in remission, there is a risk of relapse particularly if he was exposed to significant psychosocial stress. Therefore, I believe that he could benefit from counselling designed to optimise his capacity to refrain from further gambling.

In my opinion, given that his mental state is now stable and he is significantly remorseful for his actions, the chance of Mr Talafua reoffending in a similar manner is very low. I believe that the principal ongoing risk factor would be a recrudescence of his pathological gambling and as aforementioned, I believe that this is satisfactorily under control.

In my opinion, there is a risk that Mr Talafua could experience some recurrence of

schizophreniform symptoms were he exposed to the stress of a custodial environment. In my opinion, if Mr Talafua was given a custodial sentence, his mental health would require oversight by the Prison Mental Health Service.

With regard to the compilation of this report:

a. The factual matters in the report are, as far as I know true; and

b. I have made all enquiries considered appropriate; and

c. The opinions stated in the report are genuinely held by me; and

d. The report contains references to all matters I consider significant; and

e. I understand my duty to the Court and have complied with the duty.”^[15]

26. On 27 February 2020, the Applicant was sentenced for the 5 robbery offences by Judge Lynch QC of the District Court of Queensland. He said:

“HIS HONOUR: Would you stand up, please, Mr Talafua. I will tell you at the

outset the sentence I will impose is one of four years’ imprisonment, an effective

sentence of four years’ imprisonment, and I will order that that sentence be

suspended a 5 fter you have served nine months in custody. That means that you will be required to serve a period of actual imprisonment, and the consequences to your visa and deportation are all matters that you will have to face with the

Commonwealth authorities. I have to explain why I have come to that decision. So

you can be seated while I do that.

You have pleaded guilty to a total of five offences, two of robbery and three of

armed robbery. The offences occurred in two distinct periods, one of them in 2003,

the other in 2018. The first three offences occurred in 2003. In respect of count 1, it

was a robbery of an attendee at a BP petrol station on the 19th of April 2003. You

entered the petrol station store and asked for some cigarettes. The attendant was complying with that request. You then made a demand for the money.

The employee eventually opened the till. You reached across and took

approximately $200 in cash. Count 2 again involves the robbery of a petrol station,

this time on the 24th of April 2003 and again at night time. I should have said the

first offence occurred at about midnight. The second offence also was at night. On

this occasion, you asked for cigarettes, and when they were placed on the counter by the attendant, you made a demand for all of the money.

You had a small pocketknife in your left hand. Although, you did not draw attention

to the knife, and it is not suggested that you were brandishing it in a dangerous or

even overt way apart from having it in your hand. You grabbed something

approximating $90 in cash from the till, and you left.

The third offence occurred on the 20th of May of 2003, and it was the same petrol

station, the subject of count 1. Indeed, it was the same attendant who was present in the store of that service station. The attendant recognised you when you entered, and you, again, made demands for all of the money. The employee took the money out of the till and threw it at you, something less than $400, and you left the store.

So counts 1 and 3 are robbery simpliciter offences. It is not suggested you were

armed. In count 2, you were armed with the pocket knife in the way that I have

described. Counts 4 and 5 occurred on the one morning on the 13th of December

2018. At 1.15 on that morning, you entered another petrol station. You asked the

attendant for cigarettes and then removed a knife from your pants and asked the

employee or demanded, at least, the employee give you the money from the till.

The employee placed the till on the counter. You grabbed the cash from it, and it is said that there was an amount of cash and a packet of cigarettes of the value of about $300, or the cash, I think, was $290 that you took from the store. You
apparently then went home and even shaved your face, put your clothing in the bin

and went to a nearby tavern, and you spent the money that you had taken from that

service station on pokie machines.

At 4.20 am on that same morning, you went to another petrol station in the near

vicinity. You again asked the employee for a packet of cigarettes and then produced

a knife from inside of your pants, demanded, at least, the till. The till was placed on

the counter. You removed the notes and coins from the till and left, and on this

occasion, it was about $300 in cash that you took.

There was no great sophistication about any of the offences. In respect of the

offences for 2003, you were said to be wearing a hoodie, and you, in 2018, were

wearing a cap, a bandana around your neck and sunglasses when you committed the offence which is count 4 and wearing a hooded jumper at the time of the offence

which is count 5.

Unusually, in this case, it seems that the police had no information or means of

identifying you as the offender in respect of any of the five offences. Certainly,

nothing had happened during the 15 years between your offending to identify you as the offender in respect of counts 1 to 3, and it seems the police were not in

possession of any information which would have identified you as the offender in

respect of counts 4 or 5.

On the 12th of January 2019, you contacted the triple O service and told the operator

that you wanted to hand yourself in. You provided your name, your phone number

and your address and admitted that you had robbed petrol stations before Christmas

just gone. You asked the operator to send someone to your residence and advised

that you had no way of travelling to the police station. Later that day, police

attended your address, and you took part in an interview in which you made full

admissions to the offending in 2018 and admitted that you had committed robberies

in 2003.

You took part in a further interview on the 14th of January 2019 and made

admissions to two of the offences from 2003, and you explained that you had no

memory of the third offence. You were apparently released by the police and served

with a notice to appear. It seems that you have not spent any time in pre-sentence

custody for these offences. You have, however, entered what should be regarded as early pleas of guilty, and your early pleas of guilty are evidence of your cooperation in the administration of justice. There are savings of time and expense that have resulted, and, significantly, none of the complainants has been required to give evidence.

In addition, you are deserving of special leniency by reason of your admission to all

of this conduct in circumstances where it is apparent there was no other basis for

anyone to identify you as the person responsible. That is a matter of real significance and is relevant to considerations of whether you remain a danger of re-offending. I am prepared to regard your early pleas of guilty, your admissions to the police and

your admissions and statements of remorse to the psychiatrist Dr Butler as evidence

of genuine remorse on your part.

There is a victim impact statement which details the effect of the offending upon the

store attendant who was robbed twice, that is, the offences which are counts 1 and 3. That victim impact statement demonstrates that the effect of your conduct has been significant for that individual. That individual felt afraid, ended up not being able to continue in the same job, had to change the sort of job that they were working in. They continued to have feelings of insecurity and anxiety, particularly about having people in their personal space.

The impact upon the person who was robbed in counts 1 and 3 demonstrates the

seriousness of your conduct. All of the places that you robbed were service stations

operating at night and providing a service to the public. They are vulnerable targets,

and, ordinarily, significant sentences should be imposed in an effort by reason of

those sentences to offer some protection for those vulnerable targets.

These are serious offences, having significant expected consequences for the persons who were robbed, and although there were not large sums of money involved, you engaged in repetitive serious behaviour, and, ordinarily, of course, a sentence of imprisonment with actual imprisonment would be expected in respect of such serious offending committed on multiple occasions.

I have a good deal of information about you personally. You were born in Western

Samoa. Your family moved to New Zealand when you were only about one year

old, and you came to Australia, firstly, aged 18. Apart a short return to New

Zealand, it seems you’ve remained in Australia ever since. You have had two

significant relationship, the first of those, there are two now adult children, and the

second of those, you remained in. That is a relationship of over 16 years, and I

acknowledge that your partner is present here in Court and remains supportive of

you.

There are two children of that relationship who are aged 14, and they attend school.

Your partner works part time in casual work at present, and you are in receipt of a

disability support pension as a result of your diagnosed schizophrenia. I have the

report of Dr Butler, psychiatrist, which is exhibit 4, which explains your background

as well as your diagnosis of schizophrenia. That is a longstanding diagnosis. You

are presently medicated, and it seems your schizophrenia is well controlled.

Although, Dr Butler describes your schizophrenia as being in remission, that is

because you are routinely medicated, the report acknowledges that at different times, you have had consequences from that condition of schizophrenia resulting because of changes in your medication or the timing of you being medicated, but that, by and large, eventually, your condition has been controlled. Dr Butler acknowledges that you require ongoing treatment for your schizophrenia which can be dealt with on the basis of voluntary treatment as an outpatient, and Dr Butler describes that you do not require, in his view, inpatient treatment to manage that

condition.

You explained your offending and admitted it to Dr Butler consistent with your

admissions to the police. You have not sought to diminish or justify your conduct,

and you have accepted responsibility. You express remorse to Dr Butler. In respect

of the 2003 offending, you explained that it happened due to your alcohol and

cannabis use and mixing with the wrong crowd and that the money obtained in that

offending was used to support your alcohol and cannabis use.

I am told that in 2004, you had been laid off work. Your partner was not working,

and so that is why you were in a position of financial need. In respect of the more

recent offences in 2018, you described that your father had died, and in attempting to deal with that and the grief that you felt, you commenced gambling, and you were

gambling – spending your pension and that you believed your financial position was

dire.

I am told by your counsel that your partner believes, at least, that your view of the

financial position was, perhaps, skewed and that your financial position was not as

bad as you believed. The material demonstrates that you committed the first robbery

in 2018 early in the morning and went straight to a premises where you gambled

those proceeds. I am satisfied that your explanation for your conduct should be

accepted.

Dr Butler does not relate your offending in any way to your schizophrenia. You

have, at times, also suffered an anxiety condition which involves panic attacks and

other occasions that you have felt unwell, and I am told that your work history is

limited largely as a result of that. Dr Butler’s view is that your gambling problem is

now also in remission, and it seems that that is something you were able to control of your own motion.

Dr Butler clearly is of the view that you do not have an antisocial personality

disorder. You are not to be regarded as someone who is psychopathic, and, largely,

apart from this offending, you have been a law-abiding citizen. You do have a

criminal history which is of limited significance. It involves two offences for

contravening a direction or requirement, a breach of a community service order and

then breaches of bail offences as well as a possession of cannabis offence.

You have, it seems, been a decent parent and partner. Whilst it is true that you

should be given special leniency for your cooperation in the detection and resolution

of and by entering early pleas to, all of these offences, they, nevertheless, are serious examples of robbery offences and committed, of course, on multiple occasions. You have demonstrated in the interim, that is, between the periods of your offending, that you can be a law-abiding citizen.

The other matter of significance in your case is your status as a citizen. You are a resident in Australia and have been in Australia for, perhaps, most, if not all, of your adult life. You have raised children here, and your partner and children reside here.

The consequences of a period of imprisonment being imposed of 12 months or more

and you being required to serve it will be that you automatically fail the character test under the Migration Act, and the consequences will be that your visa will be

cancelled.

You are not an Australian citizen. You have a New Zealand passport. So the

expectation is if you are actually imprisoned that your visa will be cancelled, and you

will likely face deportation. There is a mechanism under the Migration Act by which

you can challenge that process, and that is a matter, of course, for the migration

authorities to attend to.

The fact of those circumstances is relevant to the sentence that I might impose.

Although, it would not be proper for me to reduce the sentence in order to avoid or

defeat the operation of the provisions of the Migration Act. Ultimately, I am

required to have regard to questions of rehabilitation and hardship as regards an

appropriate penalty, but it would be improper for me to impose a sentence simply

designed to assist you in avoiding the consequences under the Migration Act.

It is, of course, also relevant, those circumstances, to any question of the structure of the sentence and whether or not an order for supervision either under parole or

probation can be made in conjunction with an order for actual imprisonment. In the

end, I have concluded that the number of offences you committed and the

seriousness of them are such as require a period of actual imprisonment be served.

In my view, that is necessary to serve the purposes of both general and personal

deterrence and to record the seriousness of your conduct.

In the end, it might be a matter of some regret that will have significant

consequences for you and your family, but it seems to me that I should not let those

consequences and the special leniency that you are due on account of your

cooperation, by admitting all of this conduct to overwhelm the other sentencing

imperatives. In the end, it seems to me that a sentence of four years’ imprisonment

might be regarded as being on the lenient side given the number of the offences.

However, is designed to be a proper recognition of the seriousness of your conduct

together with all of those matters that are in your favour.

In the end, I am satisfied that it is appropriate that you serve some period of actual

imprisonment in light of the fact that you have taken it upon yourself to admit all of

this conduct and face the consequences of your behaviour, and in light of your

personal circumstances, in particular your schizophrenia, it does seem to me that I

can release you after a period of nine months of that sentence. I will, therefore,

structure the sentence in that way by suspending the sentence after nine months is

served.

I record also that I take your pleas of guilty into account in your favour and reduce the penalties that might otherwise have been imposed. The formal sentences then are as follows. In respect of each of the five counts on the indictment, you are sentenced to four years’ imprisonment. Those sentences are to be served concurrently. In respect of those sentences, I order that the sentences be suspended after you have served nine months of the period in custody for an operational period of five years.

What all of that means, Mr Talafua, is that you have been sentenced to four years’ jail. You have to serve nine months of that period. You will automatically be released from those periods of imprisonment, and you will be required to stay out of trouble for a period of five years commencing from today. If you commit any offence potentially punishable by imprisonment during that period, then the onus will be on you to show cause why you should not serve the remainder of the jail time.

I have taken account of your personal circumstances including that imprisonment will be more onerous on you than the average prisoner by reason of your medical

conditions and have reduced the sentence to take account of those features. I order that a copy of exhibit 4, the report of psychiatrist Dr Butler be provided to the Corrective Services authorities. Is there any further order required?

MS ROBINSON: No. Thank you, your Honour.

MR THOMAS: No. Thank you, your Honour.

HIS HONOUR: Thank you, both, for your assistance. We will just adjourn the Court.”^[16]

27. The Applicant’s full criminal record is attached as Annexure B.^[17]

28. A medical report from Dr Schramm dated 20 November 2020, reports on the Applicant’s treatment with Queensland Corrections. This report suggests that his condition is not as well controlled as may have been previously thought.

“Re: Faitala TALAFUA (DOB:...)

I write to hand over the care of this 41 year old Samoan born father of 4 (to two mothers) with a long history schizophrenia and cannabis abuse. Since February 2020 he has been under the care of the Prison Mental Health Service at Brisbane Correctional Centre and then Woodford Correctional Centre. I understand that he will be released into the custody of Border Protection upon completion of his sentence on 26/11 /20 and is likely to be deported to New Zealand.

By way of background, he has a well established history of schizophrenia dating to 1995 with admissions in 2000, 2002, 2007, 2008, 2010 and 2019. I attach some past discharge summaries and reports for further detail. He also has a history of serious suicide attempts. In recent years his illness has mostly been managed by GPs but he's been under the care of community mental health services (mostly at Ipswich) in years past. He's been treated under the Mental Health Act in the past but has been a voluntary patient since 2011. He seems to have been considered stable for a number of years and indeed was not admitted to hospital between 2010 and 2019. He seems to have been functioning reasonably well. He was admitted in 2019 with an adjustment disorder (anxious and suicidal amidst fears he might be deported) rather than for an exacerbation of psychosis.

Despite that long period of apparent remission though, he has disclosed to me that for some years leading to this incarceration he had been experiencing psychotic symptoms that he'd kept hidden from his GP and family. These symptoms (mostly hallucinations of deceased relatives) were occurring despite compliance with his depot antipsychotic (Zuclopenthixol) in the community but with regular use of cannabis (which he seemed unaware was contraindicated with his illness).

His progress early in this incarceration was characterised by significant distress and concern for risk of suicide. Such suicidal thoughts were initially assumed be related to the return of memories of a very frightening incident of childhood sexual assault. but when the suicidal thoughts returned in April, it seemed to me that his marked anxiety had a basis in psychosis, distressed by overheard (likely hallucinated) threats to his family and worries about their safety (which I've come to assume represented delusions or at least a degree of pathological thinking).

He remained quite distressed for some weeks in late April and early May, needing to be managed in the Safety Unit such were the concerns for his anxiety and poor coping. With the addition of oral Risperidone to his depot Zuclopenthixol (increased from 200 to 250mg a fortnight), he improved. He came to disclose that he'd initially been censoring the presence of voices for years out of fear and made some references to even more overt delusions (beyond persecutory fears) including that he was being spoken to by god. When improved, he disclosed more of his recent persecutory thinking, including a fear that his family might be in such danger that he might have to kill someone himself (although such a person was never identified).

After apparently coming good, he deteriorated again a few weeks later in early July, presenting as labile in mood (sometimes elevated and sometimes very distressed), intrusive, loud, religiose, formally thought disordered with odd comments about lambs' blood, feeling as though he was some kind of soldier, perhaps working for god or the prison and wanting to fight in the "gulf war" etc etc. There were some features also of delirium along with slurred speech, excess salivation and unsteady gait. It transpired that he'd been inadvertently given depot Paliperidone instead of Zuclopenthixol. This deterioration was also preceded by news that he may be being deported and expressing guilt over not being present for important family functions. Such were our concerns that we briefly sought transfer to hospital. Whatever the cause of this episode, it was relatively short lived (a couple of weeks).

Since then and over most of the last 4 months of this incarceration he had remained stable with no clear indication of psychosis. He will usually present a little overfamiliar but not grossly elevated. There was one occasion when he was breached after found with a sharpened toothbrush, explaining quite fatuously that he saw other people doing that and thought it would be "fun" to make his own. It did not seem associated with any anxiety or persecutory ideation.

Until the past couple of days, in recent weeks he has been presenting as a large, pleasant and friendly man, now calm and in good spirits. He has mild titubation which he says is chronic and does not bother him (it's not responded much if at all to Cogentin). He impresses as being somewhat immature and probably with below average IQ (probably not to the point of intellectual impairment though). Negative symptoms of schizophrenia are not prominent. He seems to have some degree of insight but a simplistic understanding of his illness. He seems to accept my advice that he cannot use cannabis.

As the end of his sentence loomed, in recent days there have been concerns of suicide risk, albeit with ideation apparently entirely contingent on being deported. He's not yet been told for certain that he will be deported, but he has told one counsellor that he could not see a point in living if he was to be deported and separated from his family such that he may kill himself (unclear if he was referring to the days after news of deportation or on release in New Zealand). Thankfully that intention today seems to have waned and he's "promised" that he would not put his family through that. He did not impress as depressed on our final interview today BUT given his history of self-harm and impulsivity, I would consider the risk of suicide in the period immediately after news of deportation next week and then on release in New Zealand would be high, such that he should be closely monitored.

He's compliant with depot Zuclopenthixol 250mg fortnightly and showed no deterioration when I ceased that additional oral Risperidone in July (I've since restarted 0.5mg in speculation but that could be weaned soon).

Ideally, he would be managed, at least for the foreseeable future, by a specialist mental health team in the community and not just by a GP.

I'd appreciate it if you could pass this letter and the attached summaries on to whoever maybe arranging for his mental health care in New Zealand.

His medication currently is:

• Zuclopenthixol depot 250mg fortnightly (should be given a dose 21/11/20)
• Cogentin 1 mg bd
• Diazepam 5mg bd
• Risperidone 0.5mg bd”^[18]

29. A report from Dr Spencer and clinical records from International Health and Medical Services dated 16 February and 3 April respectively raises similar issues.

“16 February 2021

Dear Emergency Department Doctor

RE: Mr Faitala Talafua, DOB: 2/12/1978

Thank you for considering whether Mr Talafua requires admission to hospital.

I’m concerned about his ongoing delusions and his risk of acting on them causing

harm to himself or someone else. He delusionally misidentifies males around him to

be a man who he believes raped him as a child. He is currently residing in an

immigration detention facility with forty males in his compound (sharing a room with

two males). He also has delusions about a Serco officer targeting his family, and

another delusion that he is a champion fighter.

Current mental health medications: Zuclopenthixol 250mg IMI fortnightly (last given

9/2/21), Benztropine 1mg BD, Risperidone 4mg nocte (increased from 1mg nocte to

4mg nocte on 29/1/21), Sodium Valproate 500mg BD (commenced on 12/2/21).

Weight: 130.5kg (stable)

42-year-old Samoan born father of 4 (to two mothers). Twins girls age 20, one in

Mackay (motel cleaning) and one in Inala (uncertain what she is doing). 15-year-old

son and 14-year-old daughter live with their mother. Faitala still in a relationship with

their mother, together over 15 years and have known each other for more than 18

years. She is an Australian and New Zealand citizen. She is a disability carer,

previously an AIN in nursing home. Partner and children live in [...].

Mr Talafua is Seventh Day Adventist.

Journey:

Born in Samoa

Left Samoa and went to NZ age one

Moved to Australia age 17, his father thought there was more potential for them in

Australia

Only one time in prison – 9 months (spent two months in BCC and 7 months in

Woodforde CC).

Entered detention on 26 November 2020.

VISA: cancelled on 3 March 2020, says he wasn’t told about it until mid-2020 and it

was too late to hand in his revocation paperwork. Is trying to get in contact with

Pacific Connect, says they have immigration lawyers: “I need a lawyer to help me to

fight my case”. Says he wants to stay in Australia to see his children and see his

grandchildren grow.

Personal history:

Parents deceased. Mother died of leukaemia about 10 years ago, she was in her

seventies. Father died about 5 years ago, was on dialysis for kidney failure, he was

in his seventies. Parents together until death.

Father was a machine operator in factories. Mother tried nursing but Faitala didn’t

like her doing her nursing placements, had to leave and became a supervisor.

Father was a violent alcoholic to Faitala’s mother and the children. Mother was warm

and loving as parent.

2020: return of memories of a very frightening incident of childhood sexual assault.

Has one sister, two brothers and one step-sister.

He is the third child.

Raised by parents in NZ.

Went to year 9, school suggested that he leave to do vocational training.

Then did engineering and manufacturing introductory course, didn’t follow through

with an apprenticeship.

Has mainly worked stacking pallets at the end of the line in factories, has done this

for ten years. Then got a forklift license “for a cushier job”. Did this for 5 years.

Forensic history:

2020: sentenced to 5 years in custody but only served 9 months in custody for

robbery of five petrol stations (3 of the robberies were from 13 years ago and two

were recent), was not well at the time, totally abandoned listening to his carers and

stopped his medication, started smoking THC.

Drug and alcohol history:

Alcohol: first tried age 15, “I fell in love with it”. Tried to drink as much as he could,

every weekend in binges. Luckily finances held him back. Says, as an adult, he

drinks in summer, once per week, in moderation.

Cannabis: first tried age 11, used whenever his friends brought it to school, most

days. Before jail, was smoking ¼ ounce per week.

Doesn’t like drugs that keep him awake, tried amphetamines for two weeks age 16,

decided it was not for him.

Opioids: “I did ask someone to jab me with morphine once”. Says he woke up with an

arm full of needle marks, was age 15. Says no opioid use since.

No Xanax

On Valium: prescribed in prison. Says he doesn’t feel balanced on it and wishes for a

higher dose of Risperidone at night instead.

Mental health history:

Age 20: Tried to hang himself in a park, brother saved him by breaking the branch of the tree.

Age 21: tried to kill himself by putting on heaps of nicotine patches, required

resuscitation by ambulance.

Age 21: Tried jumping in front of truck off a bridge, partner caught him with one hand

and three him back over (she was an ex bodybuilder but was pregnant).

Well established history of schizophrenia dating to 1995 with admissions in 2000,

2002, 2007, 2008, 2010 and 2019. He also has a history of serious suicide attempts.

In recent years his illness has mostly been managed by GPs but he’s been under the care of community mental health services (mostly at Ipswich) in years past. He’s

been treated under the Mental Health Act in the past but has been a voluntary patient

since 2011. He seems to have been considered stable for a number of years and

was not admitted to hospital between 2010 and 2019. He seems to have been

functioning reasonably well. He was admitted in 2019 with an adjustment disorder

(anxious and suicidal amidst fears he might be deported) rather than for an

exacerbation of psychosis.

Long period of apparent remission, however, he disclosed that for some years before his incarceration he had been experiencing psychotic symptoms that he’d kept hidden from his GP and family. These symptoms (mostly hallucinations of deceased relatives) were occurring despite compliance with his depot antipsychotic

(Zuclopenthixol) in the community but with regular use of cannabis (which he seemed unaware was contraindicated with his illness).

His progress early in his incarceration was characterised by significant distress and

concern for risk of suicide. Suicidal thoughts in April seemed related to anxiety had a basis in psychosis, distressed by overheard (likely hallucinated) threats to his family and worries. He remained quite distressed for some weeks in late April and early May, needing to be managed in the Safety Unit such were the concerns for his

anxiety and poor coping. With the addition of oral Risperidone to his depot Zuclopenthixol (increased from 200 to 250mg a fortnight), he improved. A few weeks later in early July, presenting as labile in mood (sometimes elevated and sometimes very distressed), intrusive, loud, religiose, formally thought disordered with odd comments about lambs’ blood, feeling as though he was some kind of soldier, perhaps working for god or the prison and wanting to fight in the “gulf war” etc etc. There were some features also of delirium along with slurred speech, excess salivation and unsteady gait. It transpired that he’d been inadvertently given depot Paliperidone instead of Zuclopenthixol.

Over most of the last 4 months of his incarceration he remained stable with no clear

indication of psychosis. He will usually present a little overfamiliar but not grossly elevated. There was one occasion when he was breached after found with a sharpened toothbrush, explaining quite fatuously that he saw other people doing that and thought it would be “fun” to make his own. It did not seem associated with any anxiety or persecutory ideation.

2-16 December 2020: admitted to the RBWH adult mental health unit. Rapid deterioration in mental state, hallucinations, unsteady on feet, sweating, command auditory hallucinations to exercise as well as physical concerns of salivation, sweating. Concern for psychotic symptoms in context of poor sleep. Epilim was commenced, depot Clopixol 250mg was bought forward to yesterday. Placed on RA in PEC. On R/V: Heard yelling loudly (?praying) just prior to review, superficially settled with underlying agitation, labile affect, bent over posture, disjointed thoughts difficult to follow at times. "Under so much pressure!" (crying) - when asked to clarify

denied any recent stressors - denied being overly worried about potentially being deported - would prefer to stay in Australia although is also happy enough to go to New Zealand to look after ?sister. Since moving to immigration centre about 3 days

ago has not been able sleep - "voices keeping me up at night" - states these voices

command him to do things which he cannot resist - "bend on your knees" or "jump, raise your arms up and pray"; reports nil sleep over last 2 nights; denies any persecutory/paranoid thoughts. Said he has been on Clopixol for many years; when asked about being given wrong medication: "The paedophile from when I was younger gave me the wrong medication" (crying). Denies any suicidal thoughts (states adamantly "I never have!" but this is untrue). Medical emergency called the morning after his admission for decrease in sats and ?aspiration - intubated on the

ward and transferred to ICU. Aspiration pneumonia confirmed and treated. Mental

state has stabilised during the admission, with no ongoing psychotic symptoms or SI.

There was no evidence of a mood disturbance during the admission and his mood

stabiliser was ceased. There did appear to be some EPSEs with an increased dose

of risperidone and thus this was reduced and split into twice a day dosing, with good

response. There are currently no acute risks, however he remains at a chronic elevated risk of relapse due to ongoing stressors and likely under-reporting of psychotic symptoms.

18 December 2020: Presents with resolution of auditory hallucinations but ongoing elevated mood. He reports poor sleep but this has a rehearsed quality such that it sounds like he always says this – need collateral from compound on his sleeping pattern. However, poor sleep would fit with elevated mood. Doesn’t appear to have

other symptoms of mania: has psychomotor slowing and reduced speed of thought and speech. Behaviour in compound is apparently okay but email from Serco suggests possibly disinhibited in sharing traumatic stories from prison (not sure what is meant by traumatic). Plan: add Melatonin 4mg nocte PRN. Needs to be on ongoing SME for two weeks as per IHMS hospital discharge procedure. This includes MH nurse review weekly during this period - please not any information from compound on his behaviour and sleep pattern. Psychiatrist review in a month to assess mood component to illness and stability of mental state.

29 January 2021: mental state unstable currently. Reports very poor sleep and feeling distressed regarding a delusion that he was sexually abused in childhood and almost murdered by the head of psychology at Woodforde Prison. No suicidal thoughts but has a history of impulsive suicidal behaviours. Plan: increase Risperidone to 4mg nocte. Place on Ongoing SME with request for Serco to give feedback regarding his sleep pattern and social interactions.

5 February 2021: mental state improved compared to last week. Mood appears stable and delusions are not being thought about now – says that making a police report has led to him not thinking about it anymore. Diagnosis is Schizoaffective Disorder. Does not appear to be suffering EPSE on 4mg Risperidone. Risk has returned to baseline and he can be removed off SME.

9 February 2021: depot 250mg Zuclopenthixol given.

10 February 2021: overnight call. Requesting to have his medications sorted out. Said he had had thoughts of suicide the previous night, but did not notify anyone. Placed on security monitoring until mental health nurse review in the morning.

10 February 2021: MH nurse review. Labile in mood, teary. Said that, the previous

night, he told some of the other detainees in the compound that he "thinks' he may

have touched his daughter inappropriately. He stated that the others told him not to

talk to them anymore. Was feeling very upset and "not accepted anymore...like when

I was a child". He was unable to tell me why he said this or who would've suggested

this to them as he knows it is untrue. Rang his partner and daughter to tell them and

stated they were very upset and his daughter stated 'no, you would never you are my protector". He stated he had felt so this morning as he couldn't sleep overnight,

worried one of the other detainees might harm him because of what he said. Admitted to saying he felt like killing himself but stated now he does not. Feels his medication is "not correct". Tangential and difficult to follow at times.

12 February 2021: Collateral from Serco: Mr Talafua behaving erratically, saying odd things such as that he was bitten by a snake last night (untrue) and needing to

amputate his leg. Says he wants to fight for the UFC. Wants to fight against a super

heavy weight: “Because he is a bully and I like to teach bullies a lesson. I think he is a Nazi so I want to teach him a lesson. I don’t like his tattoo”. Thinks this fellow, can’t remember his name, is about the same age as him. Says he thinks he is a good fighter. Saying fighting is: “What I do”. Says his parents paid for martial arts classes for him: “So we could look after ourselves”. Says his father also paid for private lessons for him: “Because I was his main worry. I wasn’t as strong as the others. I’ve always been the weakest out of them two [brothers]”. Says he has to get ready to fight. Says he would like to move to the mainstream compound so that he can do push ups and training to get ready to fight. To get ready to fight the Nazis “to teach them a lesson”. Feels he has to set an example for his son: “He wants to be a champion but he wants an example to show him how to fight”. Worried that a Serco officer might be trying to target his family: “Because I might have blown his cover...telling people that he is behind the assassination attempt on the queen”. Sleep: “Sleeping well but I’d like to get a good solid 8 hours sleep a night, I just keep

waking up”. Sleeping after meds or just before midnight. Wakes up 5am. Naps during the day. Eating well. Regarding psychologist in Woodforde, prepared to leave it in the police’s hands but, if they ask him for help, he is prepared to help “violently...it is the only way I know”. Talking to his partner every day, she is good. She is happy. Talks to his kids daily, they are good. Says he is not suicidal and would never do that to his family. Doing as much religious activities as he can, reading the Bible and praying. “whenever I can”. But doesn’t seem preoccupied by this. Says it is hard to walk the straight and narrow path but says he doesn’t focus on temptation and isn’t doing anything wrong that he knows of. Imp: mood features as well as ongoing delusions.

Plan: commence Sodium Valproate 500mg BD.

Yours sincerely

Dr Jillian Spencer

Psychiatrist

IHMS

...”^[19]

“3 April 2021

Progress Notes

Note added on 5:48 PM:
3 April 2021

Faitala seen by psychiatrist Jillian Spencer at BITA MH meds: Zuclopenthixol 250mg IMI fortnightly, Benztropine 1mg BD, Olanzapine 10mg nocte, Sodium Valproate 1000mg BD. Previously on Risperidone up to 4mg nocte, Melatonin 4mg nocte.
Weight: 137kg (gain of 4kg; started on olanzapine in hospital, says: I’m just enjoying the food)
42-year-old Samoan born father of 4 (to two mothers). Twin girls age 20, one in Mackay (motel cleaning) and one in Inala (uncertain what she is doing). 15-year-old son and 14-year-old daughter live with their mother. Faitala still together with mother, together over 15 years, known eat other for more than 18 years. She is an Australian and New Zealand citizen. She is a disability carer, previously an AIN in nursing home. They live in [...].
Seventh Day Adventist.

Journey:
Born in Samoa
Left Samoa and went to NZ age 1
Moved to Australia age 17, his father thought there was more potential for them in Australia
Only one time in prison; 9 months, 2 months in BCC and 7 in Woodforde CC. Entered detention on 26 November 2020.
VISA: visa was cancelled on 3 March 2020, says he wasn’t told about it until mid-2020 and it was too late to hand in his revocation paperwork. Then was given another 28 days to submit paperwork and did so in mid-2020. Says his sister liaising with his lawyer. Says he wants to stay in Australia to see his children and see his grandchildren grow.

Personal history:
Parents deceased. Mother died of leukaemia about 10 years ago, she was in her seventies. Father died about 5 years ago, was on dialysis for kidney failure, he was in his seventies. Parents together until death.
Father was a machine operator in factories. Mother tried nursing but Faitala didn’t like her doing her nursing placements, had to leave and became a supervisor.
Father was a violent alcoholic to Faitala’s mother and the children. Mother was warm and loving as parent. 2020: return of memories of a very frightening incident of childhood sexual assault.
Has one sister, two brothers and one step-sister. He is the third child.
Raised by parents in NZ.
Went to year 9, school suggested that he leave to do vocational training.
Then did engineering and manufacturing introductory course, didn’t follow through with an apprenticeship.
Has mainly worked stacking pallets at the end of the line in factories, has done this for ten years. Then got a forklift license for a cushier job. Did this for 5 years.

Forensic history:
2020: sentenced to 5 years in custody but only served 9 months in custody for robbery of five petrol stations (3 of the robberies were from 13 years ago and two were recent), was not well at the time, totally abandoned listening to his carers and stopped his medication, started smoking THC.

Drug and alcohol history:
Alcohol: first tried age 15, “I fell in love with it”. Tried to drink as much as he could, every weekend in binges. Luckily finances held him back. Says, as an adult, he drinks in summer, once per week, in moderation.
Cannabis: first tried age 11, used whenever his friends brought it to school, most days. Before jail, was smoking 14 ounce per week. Doesn’t like drugs that keep him awake, tried amphetamines for two weeks age 16, decided it was not for him.
Opioids: “I did ask someone to jab me with morphine once”. Says he woke up with an arm full of needle marks, was age 15. Says no opioid use since.
No Xanax
On Valium: prescribed in prison. Says he doesn’t feel balanced on it and wishes for a higher dose of Risperidone at night instead.

Mental health history:
Age 20: Tried to hang himself in a park, brother saved him by breaking the branch of the tree.
Age 21: tried to kill himself by putting on heaps of nicotine patches, required resuscitation by ambulance.
Age 21: Tried jumping in front of truck off a bridge, partner caught him with one hand and three him back over (she was an ex body builder but was pregnant).
Well established history of schizophrenia dating to 1995 with admissions in 2000, 2002, 2007, 2008, 2010 and 2019. He also has a history of serious suicide attempts. In recent years his illness has mostly been managed by GPs but he’s been under the care of community mental health services (mostly at Ipswich) in years past. He’s been treated under the Mental Health Act in the past but has been a voluntary patient since 2011. He seems to have been considered stable for a number of years and indeed was not admitted to hospital between 2010 and 2019. He seems to have been functioning reasonably well. He was admitted in 2019 with an adjustment disorder (anxious and suicidal amidst fears he might be deported) rather than for an exacerbation of psychosis.

Long period of apparent remission, however, he disclosed that for some years leading to this incarceration he had been experiencing psychotic symptoms that he’d kept hidden from his GP and family. These symptoms (mostly hallucinations of deceased relatives) were occurring despite compliance with his depot antipsychotic (Zuclopenthixol) in the community but with regular use of cannabis (which

he seemed unaware was contraindicated with his illness).

His progress early in his incarceration was characterised by significant distress and concern for risk of suicide. Suicidal thoughts in April seemed related to anxiety had a basis in psychosis, distressed by overheard (likely hallucinated) threats to his family and worries. He remained quite distressed for some weeks in late April and early May, needing to be managed in the Safety Unit such were the concerns for his anxiety and poor coping. With the addition of oral Risperidone to his depot Zuclopenthixol (increased from 200 to 250mg a fortnight), he improved. A few weeks later in early July, presenting as labile in mood (sometimes elevated and sometimes very distressed), intrusive, loud, religiose, formally thought disordered with odd comments about lambs blood, feeling as though he was some kind of soldier, perhaps working for god or the prison and wanting to fight in the “gulf war”; etc etc. There were some features also of delirium along with slurred speech, excess salivation and unsteady gait. It transpired that he’d been inadvertently given depot Paliperidone instead of Zuclopenthixol.
Over most of the last 4 months of his incarceration he remained stable with no clear indication of psychosis. He will usually present a little overfamiliar but not grossly elevated. There was one occasion when he was breached after found with a sharpened toothbrush, explaining quite fatuously that he saw other people doing that and thought it would be “fun” to make his own. It did not seem associated with any anxiety or persecutory ideation.
2-16 December 2020: admitted to the RBWH adult mental health unit. Rapid deterioration in mental state, hallucinations, unsteady on feet, sweating, command AH to exercise as well as physical concerns of salivation, sweating. Concern for psychotic symptoms in context of poor sleep. Epilim was commenced, depot Clopixol 250mg was bought forward to yesterday. Placed on RA in PEC. On R/V: Heard yelling loudly (praying) just prior to review, superficially settled with underlying agitation, labile affect, bent over posture, disjointed thoughts difficult to follow at times. "Under so much pressure!" (crying) - when asked to clarify denied any recent stressors - denied being overly worried about potentially being deported - would prefer to stay in Australia although is also happy enough to go to New Zealand to look after sister. Since moving to immigration centre about 3 days ago has not been able sleep - "voices keeping me up at night" - states these voices command him to do things which he cannot resist - "bend on your knees" or "jump, raise your arms up and pray"; reports nil sleep over last 2 nights; denies any persecutory/paranoid thoughts. Said he has been on Clopixol for many years; when asked about being given wrong medication: "The paedophile from when I was younger gave me the wrong medication" (crying). Denies any suicidal thoughts (states adamantly "I never have!" but this is untrue). Medical emergency called the morning after his admission for decrease in sats and aspiration - intubated on the ward and transferred to ICU. Aspiration pneumonia confirmed and treated. Mental state has stabilised during the admission, with no ongoing psychotic symptoms or SI. There was no evidence of a mood disturbance during the admission and his mood stabiliser was ceased. There did appear to be some EPSEs with an increased dose of risperidone and thus this was reduced and split into twice a day dosing, with good response. There are currently no acute risks, however he remains at a chronic elevated risk of relapse due to ongoing stressors and likely under-reporting of psychotic symptoms.
18 December 2020: Presents with resolution of auditory hallucinations but ongoing elevated mood. He reports poor sleep but this has a rehearsed quality such that it sounds like he always says this; need collateral from compound on his sleeping pattern. However, poor sleep would fit with elevated mood. Doesn’t appear to have other symptoms of mania: has psychomotor slowing and reduced speed of thought and speech. Behaviour in compound is apparently okay but email from Serco suggests possibly disinhibited in sharing traumatic stories from prison (not sure what is meant by traumatic). Plan: add Melatonin 4mg nocte PRN. Needs to be on ongoing SME for two weeks as per IHMS hospital discharge procedure. This includes MH nurse review weekly during this period - please not any information from compound on his behaviour and his sleep pattern. Psychiatrist review in a month to assess mood component to illness and stability of mental state.
29 January 2021: mental state unstable currently. Reports very poor sleep and feeling distressed regarding a delusion that he was sexually abused in childhood and almost murdered by the head of psychology at Woodforde Prison. No suicidal thoughts but has a history of impulsive suicidal behaviours. Plan: increase Risperidone to 4mg nocte. Place on Ongoing SME with request for Serco to give feedback regarding his sleep pattern and social interactions.
5 February 2021: mental state improved compared to last week. Mood appears stable and delusions are not being thought about now, says that making a police report has led to him not thinking about it anymore. Diagnosis is Schizoaffective Disorder. Does not appear to be suffering EPSE on 4mg Risperidone. Risk has returned to baseline and he can be removed off SME.
9 February 2021: depot 250mg Zuclopenthixol given
10 February 2021: call to HAS: requesting to have his medications sorted out. Said he had had thoughts of suicide the previous night but did not notify anyone. Placed on KeepSafe.
10 February 2021: MH nurse review. Labile in mood, teary. Said that, the previous night, he told some of the other detainees in the compound that he "thinks' he may have touched his daughter inappropriately. He stated that the others told him not to talk to them anymore. Was feeling very upset and "not accepted anymore...like when I was a child". He was unable to tell me why he said this or who would've suggested this to them as he knows it is untrue. Rang his partner and daughter to tell them and stated they were very upset and his daughter stated 'no, you would never you are my protector". He stated he had felt so this morning as he couldn't sleep overnight, worried one of the other detainees might harm him because of what he said. Admitted to saying he felt like killing himself but stated now he does not. Feels his medication is "not correct". Tangential and difficult to follow at times.
12 February 2021: Imp: ongoing psychotic and mood symptoms despite being on two antipsychotics. Compliant with medications currently and risk is at baseline. Less restrictive option is to manage him in detention, however, should he continue to have ongoing psychotic symptoms that aren’t settling, may need transfer to hospital. Says he has never trialled a mood stabilizer and there does appear to be a mood component to his illness. Changeable in his agreement on being prescribed this but eventually agreed to trial Sodium Valproate.
; Plan: add Sodium Valproate 500mg BD. ; Remain on ongoing SME for now due to the changing nature of his mental state, need to capture collateral information from Serco about his sleep and behaviour. Need to review mental state in a week and consider need for increased dose of Valproate if tolerated - for GP or psychiatrist review in a week for this purpose. Please notify concerns to psychiatrist. Hospital admission: 16/2/21 to 24/2/21. Initially in the HDU, then trialled on open ward successfully. Noted to have akathisia on Risperidone, changed to olanzapine with good effect. No aggression or behavioural disturbance. From Monday, persecutory ideation/delusions have reduced. Team has spoken to his partner and she reports he has returned to baseline. He is asking to be discharged. Partner says he is always restless and agitated in the first three days of depot, says she knows how to handle it, improves in the first week. Partner says he needs depot to be stable. They worked him up for Clozapine but he doesn't appear to need it at this stage, settled on Olanzapine. He prefers to stay on Olanzapine. Sodium Valproate remains at 500mg BD. Risperidone is ceased. Olanzapine 15mg nocte (await discharge summary to confirm dose). Depot Zuclopenthixol 250mg fortnight IMI given yesterday 23/2/21. Being away from family and in detention a trigger for relapse. If he deteriorates again, they are happy to have him back and will consider starting Clozapine.

26/1/21: Imp: mental state stable currently, symptoms of schizoaffective disorder not prominent currently. Low risk of harm to self or others.

Currently:

“Not bad”.

“Last night, a thought came into my head that I saved the Queen from someone attempting to assassinate her”. Knows the Queen lives in Buckingham Palace. Says the assassin was in Moreton with a gun. Says the assassin burst into the Queen’s room and he stood in front of her and his mother with a bullet proof vest on. Says this happened in the 1990s. Says he has been suffering from schizophrenia since then and his family didn’t believe that he served the Queen. Says he knows it probably is the schizophrenia making him think this. Or could have been a dream, but the topic plays in my head and on my emotions that I keep thinking it is real. Frustrated that people don’t believe him. Starts sobbing about this. Says he doesn’t want to pass away and have his son get his bravery medal. Says he has always wanted to make his parents proud and to allow them to retire. Says his father worked until he got sick and died, he was a machine operator/fitter and turner. Acknowledges his father was happy right up until he died. “Sometimes I think it is just wrong what is going on. The leaders of the world are not keeping their world or rewarding their soldiers. If a soldier serves his country, he should be rewarded. I was under-age and I volunteered to back up the ANZAC army and I saved them a lot of time and men and I just know we won the battle; it was a quick mission and quick return. I get left behind on Beihai beach, (In China, it was an oil mill, but there were Muslims trespassing who were trying to take over the oil mill, so China asked the ANZAC army for help)”. Says he was junior SAS at the time. Says: “But I should let all that go now. The main thing is, is that I am alive and well and I have a family that I love, and I can look forward to enjoying life with them and life goes on”.

Says he must stay positive.

Says he has been trying to keep a strong relationship with God, “because I am a religious person”. Pays a lot in his head and doesn’t tell others or show others that he is praying at the time. Says he prays when he needs to. Tries to read the Bible.

Says he thinks he needs his depot injection every week but doesn’t want to get over-sedated. Says he really wants it weekly, not double the dosage every fortnight. Feels the weekly depot will give him a better balance. Feels the oral medications are causing him to fluctuate. Discussed dosing of 200mg every week as trial, Mr Talafua happy with this plan.

Says he has been enjoying Easter, singing God’s praises. Says it would be more enjoyable if he was free. Says he hasn’t had any visits from family due to lockdown, has had two visits with family prior to lockdown.

Says his family are going well. Talks to them “as often as I can”. Says there is background noise in his unit which makes phone calls hard. Says he talks to his family every day.
Sleep: “it varies, whenever I feel tired”;. Says he got a good sleep last night, woke up early this morning but then had a nap after lunch today. No bad dreams. Finding roommates are fine, no issues.
Eating well, enjoying food here.
Regarding his concerns about the psychologist at Woodforde, says: “I think he is the head psychologist in all of QLD, no he is not actually, he must be changing my medication to get at me”. Then can be talked out of this, discussed that Risperidone was started for one night and then ceased due to risk of side-effects/adverse effects from three antipsychotic medications. Doesn’t seem as preoccupied by the Woodforde psychologist/abuser delusion today.
Starts saying that he wants his depot dose fortnightly, not weekly, because he doesn’t want to be addicted and over-sedated. Then says he does want it every week. Reconfirmed: agreeable to 200mg every week to trial for now. Benztropine charted.
No self-harm or suicidal thoughts: “No, I wouldn’t” Denies AH/VH.
Says there are minor irritations with other people in his unit, just little things: “If they do [bother me], I can handle it”. This is said with a smile/relaxed manner not suggestive of any active issues. No concerns/preoccupations.
Adult man, tall, overweight, shaven head, clean shaven. Dressed casually, tattoos on arm (right) and neck. Normal gait. Polite and cooperative. Mood: mostly euthymic. Affect showed lability. Speech of normal rate, volume and prosody. Thought normal in tempo, no FTD. Delusions about having saved the Queen but knows people think it is his illness. Less focused on psychologist (or sometimes says psychiatrist) at Woodforde having abused him as a child. No other delusions identified. Denies suicidality. Denies perceptual disturbances. Imp: mental state fluctuates quite a bit, with psychotic symptoms and affective instability. He appears to intermittently suffer poor sleep and to become delusional and he gets a firm idea in his mind about the medication change he needs. Today, believes that a higher dosage of depot Zuclopenthixol may help him, which it might indeed. I wonder, at some point, whether we will need to hold steady on the medications and try to help him to keep calm through his feelings rather than changing meds to manage his stress which is manifesting in delusions, whether some of this mental state instability is a manifestation of stress rather than a true worsening of his mental illness.
He appears to be stable in his sense that he will not self-harm/attempt suicide as his family is so important to him.
Plan: change Zuclopenthixol to 200mg IMI weekly. Continue Sodium Valproate 1000mg BD (need Valproate blood level please) and Olanzapine. SME Ongoing. MH nurse review at time of depot administration - please record mental state and notify psychiatrist of any concerns. If Mr Talafua agrees, depot can be changed to 400mg fortnightly rather than weekly. (He seems to want weekly at the moment
for reassurance rather than realizing the depot is long acting).”^[20]

30. On 28 May 2020 the Applicant’s Visa was cancelled under section 501(3A) of the Act. At the Applicant’s request, this decision was reviewed by the Respondent who on 8 November 2021, determined not to revoke the cancellation of the Applicant’s Visa.

31. It is this decision that the Applicant seeks to have reviewed in these proceedings before the Tribunal.

LEGISLATIVE FRAMEWORK

32. Section 501(1) of the Act provides that:

“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “

33. There are two issues presently before the Tribunal:

• whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so;
• whether the Tribunal considers that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa should be exercised.

Does the Applicant Pass the Character Test?

34. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

35. On 27 February 2020, the Applicant was sentenced by the District Court of Queensland to a term of imprisonment of 4 years. The Court ordered that the sentence be suspended after he had served 9 months in custody, for an operational period of 5 years.

36. The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Tribunal must consider whether “there is another reason why the original decision should be revoked”. This was quite properly conceded by the Applicant.

37. In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the “Direction”) has application.^[21]

38. For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

39. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

40. Paragraph 6 of the Direction provides that:

Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

41. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the best interests of minor children in Australia; and

(4) expectations of the Australian community.

42. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:

a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims; and
d) links to the Australian community, including:

1. strength, nature and duration of ties to Australia; and
2. impact on Australian business interests.

43. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:^[22]

“...Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”^[23]

OFFENDING HISTORY

44. The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.

45. The Applicant’s offending commenced in the year 2000, but his most serious offending occurred in 2003 and 2018.

PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

46. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

47. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The Nature and Seriousness of the Applicant’s Conduct to Date

48. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.

49. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

50. The Applicant’s five convictions for robbery must be regarded as very serious. He has also engaged in one serious instance of family violence as defined. This is not disputed by the Applicant or the victim. No criminal charges were laid.

51. Having regard to these matters, the Applicant’s offending must be regarded as very serious.

52. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.

53. As had already been noted, the Applicant’s five convictions for robbery are very serious. The Applicant has shown a disregard for the safety of his partner in an instance of domestic violence, as well as multiple low level driving offences and bail breaches. None of the particular matters set out paragraph 8.1.1(1) (b), aside from (iii), are relevant.

54. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.

55. The Applicant has been sentenced to 4 years imprisonment. The fact that it was suspended after 9 months reflects the extenuating considerations set out in the Judge’s sentencing remarks. The fact remains however, that the head sentence reflects the very serious nature of the Applicant’s offending.

56. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

57. There is no orderly pattern to the Applicant’s offending. There are two episodes of serious offending clustered together but separated by 15 years. The latter two offences are, however, much more serious due to the level of planning involved and the menacing presence of a large knife. To this extent there is a trend of increasing seriousness.

58. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

59. The cumulative effect of the Applicant’s offending is very serious. The Victim Impact Statement of “KB” dated 4 December 2019 demonstrates how devastating these offences were to one of the victims. She states as follows:

“Victim Impact Statement [KB]

The crime has affected me in the following ways:

For a period of time after the crimes I couldn't leave the house. I didn't feel safe and couldn't leave my home. Even today, 15 years later, I feel unsafe. I deadlock the doors when I'm home. I lock the doors of my car when I drive. I hate the feeling of being constantly unsafe. I am on edge all the time.

The crime has affected relationships with people, including my partner. I can't stand people being physically near to me. It can cause an anxiety attack. Even today, where I work now, in retail, if a customer gets too close to me, I have to take a step back. I often feel cornered by customers I am supposed to be helping. Sometimes I can't tolerate my partner getting into my personal space.

I feel a lot of anger related to this crime. The offender didn't just hold me up once. He did it twice. He violated me. He violated me twice. He felt that he was entitled to do that to me. I still suffer the effects of what he did to me, and it happened 15 years ago. It is not fair.

I still have nightmares about the crime every now and then. I have troubles sleeping. I have to sleep facing the door with the lights on. This is embarrassing to me. When my partner is on night shift, I don't sleep at all. This is exhausting and doesn't go away. I experience depression and anxiety as a result of the crime. It took years to find the correct medication to treat the acute anxiety. I am still on this medication. I continue consulting with a GP to monitor my mental health.

I have lost wages because of the crime. I was never reimbursed through workers compensation. I was young and didn't know about workers compensation. No one told me I could apply for workers compensation. I received no support from my employer and felt very alone and confused about how to move forward. I could no longer manage night shifts because of my fears. As a casual employee I had to wait for a number of weeks before my employer found me a day shift. The day shift my employer found me was a long way from my home and I eventually decided to leave my job and look for employment closer to home. In the end this act of violence ended my career in this type of customer service work. A career I enjoyed and looked at as a long-term prospect.
The insecurity that plagues me on a daily basis is as intense as it was when the crime occurred fifteen years ago. I feel that it will always remain with me even when I have since returned to my home state of Western Australia. My hope is that one day I can take for granted the safety that most people feel when engaging with others in the community.”^[24]

60. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

61. There is no evidence of any conduct of this kind by the Applicant.

62. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.

63. There is no evidence of such a warning having been given, so this is not relevant.

64. I do not consider factors (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

65. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

66. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Nature of harm should the Applicant engage in further criminal or other serious conduct

67. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

68. The nature of any harm that any future offending might cause is very serious. His offending has involved armed robbery of vulnerable targets in late hours. This is extremely serious even if it does not escalate to use of a weapon. The Applicant has shown a propensity to commit such crimes and has done so in very similar circumstances, on five occasions. I refer again in this context to the Victim Impact Statement of KB^[25] He has admitted to one example of serious family violence.

Likelihood of engaging in further criminal or other serious conduct

69. There are some assessments of the Applicant’s mental state in evidence.^[26] As previously noted, there was no expert called to assist the Tribunal specifically on this issue. The assessments were initially focused on the Applicant’s fitness to stand trial. The latter ones deal with his management in prison and detention. In these reports, consideration of his risk of him re-offending in the future was secondary or incidental.

70. Dr Butler states in his report of 13 February 2020 that “the chance of Mr Talafua reoffending in a similar manner is very low”.^[27]

71. In all the circumstances, and considering both the Applicant’s and MT’s evidence, I accept the view expressed by Dr Butler. The Applicant has generally been compliant with his medication regime over many years. It seems from his history that when he is compliant, he represents a low risk of offending. The Applicant has commendably demonstrated genuine remorse by turning himself in to police and making full admissions in circumstances where he was not even a suspect in the relevant offences. The Applicant is committed to his family and is strongly motivated not to reoffend so as to remain with them.

72. The big risks are that the Applicant will gamble and/or use cannabis and/or alcohol. It is a concern that the Applicant has no fixed plans to have ongoing treatment for his gambling and substance abuse issues, should he be returned to the community. He has said that he is finished with gambling and drugs, but he would face temptations if released. It is not clear that he will remain compliant with his medication regime. It is true that if he reoffends prior to 27 February 2025, he will be returned to the Queensland District Court for resentencing under the existing Court orders. He would also face whatever charges might flow from that offending. This does not however equate to him being on parole or under the supervision of Queensland Corrections until 2025. This Tribunal can not grant a conditional visa.

Conclusion: Primary Consideration 1

73. Primary Consideration 1 weighs against revocation.

PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

74. Paragraph 8.2 of the Direction provides:

(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:

a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3) In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

1. the extent to which the person accepts responsibility for their family violence related conduct;
2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
3. efforts to address factors which contributed to their conduct; and

d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

75. The Applicant’s history of family violence has been set out in detail above.

76. There is one documented instance of family violence. It is serious. It must have been frightening for the victim. It seems that this episode corresponded with the Applicant being non-compliant with his medication regime. It is an awful, but apparently isolated instance. I accept that when properly medicated, the Applicant is most unlikely to re-offend. I note that the Applicant’s then partner is still with him some 12 years after the event and that she gave evidence in support of him at the hearing.

Conclusion: Primary Consideration 2

77. This is certainly not an example of the most extreme form of sustained domestic violence, but this Primary Consideration 2 nevertheless weighs moderately against revocation.

PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

78. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

79. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

• the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
• the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
• the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
• the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
• whether there are other persons who already fulfil a parental role in relation to the child;
• any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
• evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
• evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

80. The relevant minor children in Australia are:

(a) Child A – Applicant’s son (16 years of age);
(b) Child B – Applicant’s daughter (15 years of age);
(c) Child C – Applicant’s nephew (14 years of age); and
(d) Child D – Applicant’s grandson (1 month of age).

81. Child A is the Applicant’s 16-year-old son. He gave evidence in support of his father. It is evident that they have a very close and loving relationship. The Applicant is an active and engaged parent. He has been the primary caregiver and homemaker. His partner has been the primary breadwinner. Child A has found the separation from his father since his incarceration to be stressful. It would be strongly in his best interest if his father were returned to the community and to performing his parental role in the family. Child A could possibly relocate to New Zealand with his mother and sister if the Applicant were removed, but the Applicant does not want this to occur. He believes that his children have a brighter future here than they would have in New Zealand. If the Applicant were removed, it is most likely that the family unit would be broken apart.

82. Child B is the Applicant’s 15-year-old daughter. She also gave evidence in support of her father. Her situation is broadly the same as Child A’s. It would be strongly in her best interest if her father were returned to the community.

83. Child C is the Applicant’s 14-year-old nephew. The Applicant states that “I don’t have a close relationship with [Child C]. I see him occasionally when my brother comes to Queensland, my brother and his wife are separated [Child C] lives with my sister-in-law, which has made my contact with [Child C] even less frequent.”^[28] The Applicant does not perform a parental role or provide any ongoing support but has some relationship with Child C.

84. Child D is the Applicant’s 1 month old grandson. It is too early to have any clear view about what the Applicant would mean for Child D. He lives in Mackay, a long way from the Applicant. In general terms it would be in the best interest of Child D to have a relationship with the Applicant. This would be very difficult if the Applicant were to be returned to New Zealand.

Conclusion: Primary Consideration 3

85. Having regard to all of the above, Primary Consideration 3 weighs heavily in favour of revocation.

PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

The relevant paragraphs in the Direction

86. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

87. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.

88. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

89. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

90. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.^[29]

91. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

Analysis – Allocation of Weight to this Primary Consideration 4

92. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the Applicant’s criminal record as a whole. It is also appropriate to note the nature, seriousness and frequency of his crimes.

Conclusion: Primary Consideration 4

93. Primary Consideration 4 weighs against revocation.

OTHER CONSIDERATIONS

94. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

(a) International non-refoulement obligations

95. This other consideration does not arise.

96. This Other Consideration (a) is neutral.

(b) Extent of Impediments if Removed

97. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a) the non-citizen’s age and health;
(b) whether there are any substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to that non-citizen in that country.

98. The Applicant is 43 years of age. There is no evidence of physical illness, but he has a long-standing psychiatric condition which requires ongoing treatment and monitoring. There would be some temporary issues with the timely handover of relevant medical information, but the Applicant’s illness can be well managed by the medical system in New Zealand.

99. The Applicant would almost certainly suffer serious mental health issues associated with the upheaval of being returned to New Zealand and separated from his partner and children. The Applicant expressed the view that he would be “devastated” and “suicidal”.

100. There would be no substantial language or cultural barriers if the Applicant were to be returned to New Zealand

101. New Zealand has comparable social, medical, and economic support available to the Applicant to that available in Australia.

102. This Other Consideration (b) weighs in favour of revocation.

(c) Impact on victims

103. This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

104. The Tribunal has a Victim Impact Statement from KB.^[30] The Applicant’s offending has had a serious and ongoing adverse impact on this victim. There is, however, no evidence regarding the impact of this decision on any victim.

105. This Other Consideration (c) is therefore neutral

(d) Links to the Australian Community

106. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

• the strength, nature, and duration of ties to Australia; and
• the impact on Australian business interests.

The strength, nature, and duration of ties to Australia

107. The Applicant has very deep connections with Australia. He has lived here for his entire adult life. Most of his immediate family are here, although he does have some relatives in New Zealand. He has two adult daughters, a recently arrived grandson, two brothers, various in-laws, three nieces/nephews (including Child C), twenty-plus cousins, a domestic partner, and two minor children in Australia. He has a sister, three uncles/aunts, four nieces/nephews, and fifteen-plus cousins in New Zealand.^[31]

108. He is the primary care giver for Child A and Child B.

109. This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs in favour of revocation.

Impact on Australian business interests

110. There is no evidence relating to this matter and so it is neutral.

111. This Other Consideration (d), paragraph 9.4.2 of the Direction, weighs in favour of revocation.

Findings: Other Considerations

112. The application of the Other Considerations in the present matter can be summarised as follows:

(a) international non-refoulement obligations: neutral;

(b) extent of impediments if removed: weighs in favour of revocation;

(c) impact on victims: neutral;
(d) links to the Australian community including the strength, nature, and duration of ties to Australia: weighs in favour of revocation; and
(e) the impact on Australian business interests: neutral.

CONCLUSION

113. It is necessary to weigh up all of the Primary and Other Considerations.

114. Primary consideration 1 weighs against revocation.

115. Primary consideration 2 weighs moderately against revocation.

116. Primary consideration 3 weighs heavily in favour of revocation.

117. Primary consideration 4 weighs against revocation.

118. Other considerations, (a), (c) and (e) are neutral.

119. Other considerations (b) and (d) weigh in favour of revocation

120. In my view, the proper application of the Direction favours the Tribunal exercising the discretion to revoke the cancellation of the Applicant’s Visa. I do find that there is “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.

DECISION

121. The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s Visa be revoked.

I certify that the preceding one-hundred and twenty-one (121) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

............................[Sgnd]...........................
Legal Administrative Assistant

Dated: 27 January 2022

Date of hearing:	17 & 18 January 2022
Advocate for the Applicant:	Joel McComber, Sentry Law
Advocate for the Respondent:	Alex Chan, Sparke Helmore

Annexure A – List of Exhibits

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues & Contentions
2	Respondent	Statement of Facts, Issues & Contentions
3	Respondent	G-Documents
4	Applicant	Bundle of Documents: 1. Psychiatric Report – Dr J Butler – 13.02.2021 2. Statutory Declaration – Child A, Child B & MT – 30.08.2021 3. Letter of Support – GT & TT – 08.11.2021
5	Applicant	Bundle of Documents: 1. Applicant’s submissions in reply 2. Media release – The Honourable Greg Hunt – 13.12.2018 3. Letter from Dr Schramm – 20.11.2020 4. Letter from Dr J Spencer – 16.02.2021 & Consultation note from Dr J Spencer – 03.04.2021 5. Media release – Prime Minister Scott Morrison – 11.05.2021 6. Centrelink Income Statement – 04.01.2022 7. Draft statement – TT
6	Respondent	Tender Bundle

Annexure B – Applicant’s Offending History

Court	Court Date	Offence	Court Result
Richlands Magistrates Court	05/01/2007	PPRA Contravene Direction or Requirement (on 29/11/04)	Convicted and not further punished
Ipswich Magistrates Court	24/07/2007	PPRA Contravene Direction or Requirement (on 04/01/07)	On all charges: with contravene direction or requirement – convicted and not further punished
Ipswich Magistrates Court	03/08/2007	Breach of a community service order imposed on 5/1/07	For breach of order: convicted and not further punished
Ipswich Magistrates Court	02/07/2019	Breach of bail condition (on 14/01/2019) Breach of bail condition (on 16/01/2019) Breach of bail condition (on 01/03/2019)	On all charges conviction recorded Fined - $200
Ipswich Magistrates Court	15/08/2019	Breach of bail condition (on 17/07/2019)	Conviction recorded Fined - $300
Ipswich Magistrates Court	30/08/2019	Possessing dangerous drugs (on 09/08/2019)	No conviction recorded Recognisance - $400 Good behaviour period – 4 months
Ipswich Magistrates Court	05/02/2020	Breach of bail condition (on 30/09/2019) Breach of bail condition (on 02/12/2019) Breach of bail condition (on 13/12/2019) Breach of bail condition (on 08/01/2020)	On all charges conviction recorded Fine - $800
Ipswich District Court	27/02/2020	Robbery Robbery armed/in company/wounded/used personal violence	On all charges: conviction recorded Imprisonment – 4 years To be suspended for 5 years after serving 9 months
Ipswich Magistrates Court	13/03/2020	Breach of bail condition (on 21/02/2020)	Conviction recorded, not further punished

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^[1] Exhibit 3, p 78.

^[2] Exhibit 5.

^[3] Exhibit 4, p 4.

^[4] Exhibit 6, R1, pp 1 & 34.

^[5] Ibid, pp 2 & 37.

^[6] Ibid, R2, p 33.

^[7] Ibid. For full particulars see Exhibit 6 pp 41, 44, 48, 102-108.

^[8] Ibid, R2, pp 19-31.

^[9] Ibid, R1, p 2 & R2, p 56.

^[10] Ibid, R1, p 3 & R2, p 52.

^[11] Ibid, R1, pp 3-4.

^[12] Ibid, R2, pp 60, 65, 69, 77, 81, 85, 89, 93.

^[13] Ibid, R3, pp 96-101.

^[14] Ibid, R2, p 73.

^[15] Ibid, R1, pp 7-18.

^[16] Exhibit 3, G6, pp 31-37.

^[17] Ibid, G4, pp 27-28.

^[18] Exhibit 5.

^[19] Ibid.

^[20] Ibid.

^[21] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
^[22] [2018] FCA 594.
^[23] Ibid, [23].

^[24] Exhibit 6, R1, pp 5-6.

^[25] Ibid.

^[26] Ibid, R2, pp 96-101 & R1, pp 7-18.

^[27] Ibid, R1, p 17.

^[28] Exhibit 3, G10, pp 70-71.

^[29] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

^[30] Exhibit 6, R1, pp 5-6.

^[31] Exhibit 3, G10, p 72.