Cash and Minister for Immigration and Multicutural Affairs [1999] AATA 46 (22 January 1999)

Last Updated: 10 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 46

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N97/1325

GENERAL ADMINISTRATIVE DIVISION )

Re JOHN WILLIAM CASH

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Dr P Gerber, Deputy President

Date 22 January 1999

Place Sydney

Decision The Tribunal affirms the decision under review.

(Sgd) P Gerber

DEPUTY PRESIDENT

CATCHWORDS

Immigration - deportation - New Zealand citizen - conviction for malicious wounding of a young child - schizophrenia - obligation to provide sanctuary for the mentally ill - risk of re-offending - level of acceptable risk - little hardship to immediate family or applicant if deported.

Re Salazaer-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36.

REASONS FOR DECISION

22 January 1999 Dr P Gerber, Deputy President

1. This is an application to review a deportation order, made the 20th August 1997 by the delegate of the Minister of State, responsible for administering the Migration Act 1958 (Cth) ("the Act"), pursuant to s 200 of the Act. The order stated that on 23 February 1995 the applicant, John William Cash, committed the offence of maliciously inflicting grievous bodily harm, an offence for which he was convicted on 20 October 1995 and sentenced to a minimum term of 21 months imprisonment, with an additional term of seven months. At the time of the commission of the offence, the applicant was a New Zealand exempt non-citizen who had been in Australia for a period of less than ten years.

2. Ss 200 and 201 of the Act relevantly provide as follows:

200. The Minister may order the deportation of a non-citizen to whom this Division applies.

201. Where:

(a) a person who is a non-citizen has, either before or after the commencement of this section, has been convicted in Australia of an offence;

(b) when the offence was committed the person was a non-citizen who:

(i) had been in Australia as a permanent resident:

(A) for a period of less than 10 years; or

(B) for periods that, when added together, total less than 10 years

(ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:

(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or

(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities: and

(c) the offence is an offence for which the person was sentenced to ... imprisonment for life or for a period of not less than one year:

section 200 applies to the person.

3. It appeared from the T Documents that the applicant had been seen by Dr Peter Young, psychiatrist, attached to Bungarribee House, the psychiatric unit of the Blacktown Hospital, who had furnished the following report.

"Mr Cash was under my care following his admission to Bungarribee House, Blacktown Hospital on 22/12/97. He gave a history of suffering symptoms of psychosis including auditory hallucinations and paranoid delusions. The symptoms included hearing voices of people saying that they were going to kill him and of believing that he was being watched and followed by people who meant to harm him. The symptoms had begun while he was in prison and had become more severe over time. At the time of admission he was terrified that he was in immediate danger of being killed. He also admitted to marijuana usage and this appeared to be related to the deterioration in his symptoms.

His diagnosis of admission was of a schizophreniform disorder which was most likely precipitated by a combination of stress and drug use. He was treated with an antipsychotic medication with good control of the psychotic symptoms. He was discharged on 29/1/97. I was able to see him only once for outpatient follow-up before he moved out of this service's catchment area. At that time he continued to experience some symptoms but this was in the context of further marijuana use and non-compliance with medication. I advised Mr Cash to recommence medication and to abstain from marijuana.

His prognosis is good if he remains abstinent from marijuana and other hallucinogenic substances."

4. The thrust of the report was such, that I indicated to the parties at the outset and before hearing any evidence, that since the report was twelve months old, it seemed to me that it was highly desirable that I should be furnished with a more up to date psychiatric assessment. The applicant agreed to undergo a fresh assessment and arrangements were made with the Blacktown City Mental Health Service for an immediate examination and report. It then transpired that Dr Young was on holidays, but that another psychiatrist - Dr Giuffrida - would see the applicant that afternoon and was willing to give evidence the following day. In the result, I took the applicant's evidence that morning and adjourned the matter at the conclusion of that evidence, to enable the psychiatric assessment to be made.

5. The applicant was born in New Zealand on 1 January 1972, arriving in this country on 19 March 1988, aged 16 years, accompanied by his parents and two younger sisters. He is therefore a special category visa holder (s 32) for purposes of s 201(b)(ii) of the Act.

6. After arrival in Australia, the applicant served a bricklaying apprenticeship for some 30 months, albeit failing to complete his apprenticeship. He then did some casual work in a cabinet factory. For the next six months he was in receipt of unemployment benefits. He then worked for two and a half years in a rubber factory before again going on to public welfare. This takes him to age 21, when he started off on a series of crimes which culminated in the offence, the subject of his deportation order. Having completed his term of imprisonment, he is currently working as a labourer on a construction site, having worked there for some two months prior to this hearing.

7. In chronological order, the applicant was convicted on 28 July 1993 at the Campbelltown Local Court of being in custody of an offensive implement, a pipe and fined $300. On 20 January 1994 he was convicted at the Burwood Local Court of a number of offences, including possession of a prohibited drug, cannabis, refusing to undergo breath analysis, resisting police, and assaulting police in the execution of their duties. It seems that this last batch of offences arose as a result of a motor vehicle accident, the vehicle being driven by the applicant who was under the influence of drink and marijuana.

8. I now turn to the deportable offence, which occurred on 23 February 1995. I have taken the facts largely from the findings of the trial judge, his Honour Judge Bell of the New South Wales District Court, who convicted the applicant of the deportable offence on a plea of "guilty" on 20 October 1995.

9. It seems that whilst living with his grandmother, the applicant had for some months been in a "relationship" with one Charlene Andrews, who had a seven months old daughter from another relationship. On the day in question, the mother needed to attend hospital, leaving her daughter in the care of the applicant. During her absence, the applicant intended to bathe the child. However, before placing the baby in the bath, the applicant admitted "I had been a bit violent when I took [the nappy] off her. I didn't both like the thing and that I just ripped off the sides". This caused the baby to scream. Paraphrasing from his Honour's summary of the events, taken largely from a record of interview, and which are not in dispute, it seems that after the baby was placed in the bath, she quietened to some extent. However, after taking the baby from the bath she began to cry again, whereupon the applicant slapped the baby across the face. These blows resulted in the baby comme! ncing to bleed from inside her mouth. A flannel was used as a cloth to wipe the blood and the baby was placed in the cot. The baby did settle down but commenced to cry again, whereupon the applicant hit the child on the side of her head, "I slapped her, I hit her on the buttocks. I just wanted her to stop crying." The trial judge noted:

"because he had to get out and he then entered the bathroom where in anger he pulled the railing from the wall. He returned to the baby's cot, took the baby by the arms. He said he was trying to cradle her, but when she would not stop crying 'I threw her back into the cot'. The baby's head struck the side railing of the cot."

10. The applicant admitted in his record of interview that he had shaken the baby prior to throwing her into the cot. It seems that he then struck the baby with two blows across the face, the nappy then came off and there were two more blows.

11. Upon receiving the blow to the head, the baby's eyes rolled back into her head and it looked to the applicant as if she was choking on her tongue. Realising that the baby was in severe distress, he called upon neighbours asking that an ambulance be called urgently. On arrival at the hospital, the baby was found to suffer from severe bruising and contusions. More ominously, she also suffered from head injuries, described by the treating doctor as:

"a severe head injury with likely permanent brain damage, the degree of which cannot be ascertained at this stage but will become clearer over the next few years. ... Some delay in her intellectual development is the most likely long term problem."

12. When asked by Mr D Smith (departmental advocate) why the applicant did all this to a young baby, he replied: "Because I couldn't handle the child crying all the time."

13. It was submitted to the judge that in all the circumstances, a sentence of periodic detention was appropriate. The judge rejected this, and in sentencing the accused to a minimum term of 20 months with an additional term of seven months to commence at the expiration of the minimum term on which the applicant will be eligible for parole, said:

"The objective seriousness of the matters in my view far outweigh any consideration of a periodic detention sentence should be accorded this offender. In my view there has to be a sentence imposed which reflects the concern of the community that this type of conduct is abhorrent and is a sentence which is expressed to convey both to this offender and to those in the community who might similarly engage in such activity that they will face very serious punishment indeed. I note that the maximum penalty for this offence is seven years of penal servitude."

14. Whilst on bail awaiting his trial, the applicant continued to co-habit with Ms Andrews, whose mother thereupon made a complaint to the Department of Community Services about these visits. As a result, the Department insisted that Ms Andrews take out an apprehended domestic violence order (ADVO) or else she would lose custody of the child. An ADVO was taken out, but the applicant ignored the order, whereupon he was convicted of the offence of breaching the ADVO in May 1995 and sentenced to a term of imprisonment of one month.

15. After the applicant was released on parole for the deportable offence in July 1997, he moved in with his parents at Oakhurst, the household then consisting of his parents, their older daughter, the daughter's boyfriend and that couple's three children. (In due course the older daughter and her family found their own place to live in Mt Druitt, and the applicant moved in with them for some months until asked to leave by his sister on the insistence of her boyfriend. He then moved into a boarding house in Strathfield. After that, the applicant moved from hostel to hostel in or around Parramatta. All these various moves appeared to have taken place after the fateful events of 22 December 1997, which will be referred to in detail below).

16. On 8 December 1997, the applicant was convicted at the Blacktown Local Court of possession of a prohibited drug (marijuana) and fined $500.

17. I now turn to the contents of Dr Young's report, and in particular the history the applicant gave the doctor of hearing voices of people saying they were going to kill him. The applicant readily agreed in evidence that the history recorded by Dr Young accurately reflects what he told the doctor.

18. It appears that on 22 December 1997, the day the applicant was admitted to Bungarribee House, he had run away from his parent's home, "thinking someone was going to try and kill me. I thought someone was trying to come to their house and kill me, so I thought it best if I left and ran." He rang the police who, because he had made a similar call on a previous occasion, sent for an ambulance which took him to Mt Druitt Hospital, where he was counselled and in due course taken to Bungarribee House and was admitted by Dr Young.

19. The applicant freely admitted that his delusional thinking predated the acute psychotic episode of 22 December 1997, going right back to the time he was in prison and even before. The following is taken from the transcript of the evidence (pp 26 et seq).

Applicant: I actually started hearing voices ... they weren't like actual voices when they first started off. It was like my own ideas of what people were thinking and saying ... it grew from there I suppose. They became very real.

The D President: And when did they become real?---When I started talking back to them.

And did it get progressively worse?---Yes, it was - I was, only the reason I talked to the voices was just to find out who they were.

20. It seems that the applicant's psychotic episodes were left untreated until he was admitted to Bungarribee House. On admission, he was put on anti-psychotic medication and warned to stay off marijuana. The applicant admitted that he stopped using marijuana "for a certain time, then I stopped the use of the actual medication." When asked why he stopped his medication, he said: "I felt really lazy. I couldn't do anything, it was like I couldn't concentrate or do anything. Like at the time I was looking for work and it would just make me really tired and no energy. ... my lifestyle really changed, it used to make me bloated, I was lazy, I couldn't concentrate."

21. When asked by Mr Smith how he felt, he claimed he was feeling alright, "but as I said, when I'd take the actual medication, I had no concentration, I couldn't concentrate." After discharge from Bungarribee House, he did not return to see Dr Young, believing that if he stopped taking the medication, "the voices wouldn't be coming back that bad."

22. When asked about his marijuana consumption, the applicant admitted to occasional use, albeit claiming he had not used it for the last eight months. When asked how marijuana affected him, he replied: "How do you mean? Do you mean did the voices return? To tell you the truth they are still there sometimes."

23. When asked about his plans for the future if allowed to stay in Australia, he replied: "Continue on with my work, eventually settle down and buy a house, get married and have children, start a family."

24. Cross-examination established that his contact with his family was at best spasmodic: "Lately not that much. I've been pretty busy. I'd call my Mum on the phone and chat with her every two or three weeks". His family do not call him or visit him: "They are usually too busy working. My week-ends are pretty full." His mother confirmed in her evidence that she hadn't heard from her son in two months. However, he frequently has lunch with his younger sister, who works in Parramatta. He no longer sees his older sister.

25. Asked about whether he had any family in New Zealand, it seems he has "uncles and aunties which I haven't seen for the last ten years. ... maybe in Christmas time they'll ring my parents to have a chat to them, say 'hello, how are you going?' and all that, but no, I don't have any other contact other than that."

26. At the conclusion of the cross-examination, I asked the applicant some further questions about his medical condition. The following then took place.

The D President: Mr Cash, you told me before that you are still hearing voices sometimes?---Yes.

What do they tell you?---Oh, sometimes, well, all the time. It's mainly my ex-girlfriend, it's mainly my ex-girlfriend's voice and her family that I hear, and I don't know who else.

Any how often do you these voices?---A couple of times a day.

A couple of times a day?---Yes. But I've learnt to ignore them.

Do they ever tell you to do something?---No, not like harm myself, if that's what ---

Well, what do they tell you?---They tell me, it's like, sometimes they're not actually talking to me, I can overhear their conversations, and something they'll be, they threaten me, and my girlfriend will be pleading with me to come back to her and do something. I don't know.

Your girlfriend pleads with you to come back to her?---Yes.

Anything else?---Yeah, sometimes, like I hear male voices and they'll be, like abusing, like calling me names.

Sometimes you hear male voices and they abuse you?---Yes. They threaten to like - - -

They threaten you?---Yes, they threaten to kill me, but I don't take any notice of them at all, I just - - -

27. That concluded the applicant's evidence.

28. Mr Smith then proceeded to call the applicant's mother, Nanette Henrietta Cash. When asked why the applicant left his older sister's home, the mother replied: "All she said was that the boyfriend asked her to tell John to move out." It seems the couple were concerned about the children: "I think mainly because he was having his hallucinations. It wasn't really he would harm the kids, it was just that he was hallucinating. He'd never harm the kids."

29. The witness graphically described the events of 22 December 1997: "There was a horrible day. It was like looking at someone that wasn't really there. I was trying to talk to him, but his eyes were sort of rolling everywhere, and I was trying to calm him down, but it was like he wasn't there. It wasn't him. It was horrible."

30. After the applicant's discharge from Bungarribee House, he returned to his parents' home for some month, telling his mother after some time that his medication was making him feel "bad". His mother thereupon told him to stop his medication ("I told him to stop taking it because if it was making him feel worse than how he was feeling, stop taking it. Try to wean himself off.") It was, of course, the worst possible advice the mother could have given him.

31. That concluded the evidence for the applicant. The matter was thereupon adjourned to enable him to be examined by Dr Giuffrida, who proceeded to give his evidence the following day.

32. Mr Smith examined the witness at length, Dr Giuffrida having seen the applicant and his mother for about an hour and a quarter the previous day. I propose to set out part of the examination of the witness at some length:

Dr Giuffrida: Well I think it is fairly clear that Mr Cash has suffered from a now persisting or chronic psychotic condition, probably from about the time or soon after the assault on the child, which I think was in 1993 (sic) and these symptoms have continued to the present time. They consist predominantly of quite vivid, clear, auditory hallucinations occurring in clear consciousness that can occur at any time. They are very intense and very real to him, he experiences them in any situation, but also at work. He hears them at the present time. He will often respond to them in situations that are somewhat inappropriate. For example he said yesterday that he can be 'caught out at work', to use his words, meaning that his work mates might comment on his talking to someone and ask him who he's talking to, and he simply says 'no-one'. Also present since about the same time are ongoing persecutory d! elusional ideas of a persecutory nature that some person or persons are coming to get him to do him some serious harm. He doesn't really know what form that might take but the fear is ever present. He has always been particularly fearful at night wherever he is staying, and has been so fearful of someone doing him immediate harm at times that he has fled the scene of where he has been. For example, immediately prior to his admission to Bungarribee House psychiatric unit of Blacktown Hospital on 22 December 1997 and other times it appears that he has sought to defend himself in various ways, I think mainly by being fit and prepared. He told me that in prison that he did a lot of weight-lifting, and so on to keep himself fit and strong, fearing such an attack and also at times he has kept a knife under his pillow. I think at one time he was found in the possession of an instrument - I think it was a knife, it's referred to, I think, in one of the documents I believe the criminal history. There is also a histo! ry of substance abuse. I thin!k this has probably been quite long standing and probably predated the onset of his hallucinations and delusional ideas. That seems to be principally of alcohol of which he was a heavy user in the past. Then he went on to a regular use of cannabis. He tells [me] that when he originally started using cannabis, that it had a calming and relaxing effect on him, but it seems that with time the effect of the cannabis has been to make the - I'll just try and quote from what he said - when he smoked marijuana, it has made the voices worse, they sounded a lot louder, and when he smoked marijuana he became quite convinced that not only could he hear these voices, but the sources of the voices - to quote him - that 'they knew that I could hear them'. So it seems that when he used marijuana, the hallucinations took on a more insistent delusional quality, or at least it reinforced his delusional fear that he was in immediate harm. He was certainly using cannabis regularly, prior to his ! admission to Blacktown Hospital in December '97 and it seems highly likely that it led to the exacerbation of his symptoms at that time and precipitated his admission to hospital. After his discharge from hospital, or perhaps I should go on to say that he was put on anti-psychotic medication when he was in hospital and he took this for about two months but then stopped it for various reasons which I can go into, and he then recommenced the use of cannabis, I gather and I expect, or I suspect, on a regular basis he said until about eight or nine months ago, after which he ceased to take it on a regular basis but has used it on some occasions irregularly up to three months ago. He has not had any cannabis for the last three months. I'm inclined to believe that that is the case. So I think he has, in summary, a chronic psychotic illness. It certainly has a predominantly hallucinatory and persecutory flavour, because of the persistence of it for so many years both in the presence of and the absence of cannabis o! r other hallucinogenic drugs,! and I think I can reasonably exclude other hallucinogens. It's likely that he has a schizophrenic basis to the condition, that is, it has a kind of an on going life of it's own. It seems though, very likely, that the precipitant for the onset of the psychosis and the cause of further exacerbation and maintenance of his symptoms has been the continuing use of cannabis. It is unfortunately a case that once cannabis has precipitated and aggravated hallucinatory psychosis like this, then it takes on a life of it's own and may persist indefinitely without hallucinogenic drugs. So, although it has a schizophrenic format, it has a marked drug induced component.

Mr Smith: Were you able to form any opinion on what the cause of his condition might have been?---Yes, there's a family history of hallucinatory psychosis. His mother told me that her eldest brother has suffered from, I think, recurrent hallucinations, and his eldest daughter has also suffered from hallucinations and a probable chronic psychotic illness. So Mr Cash's uncle's daughter, so his first cousin, also has hallucinations and is currently in a psychiatric hospital in New Zealand, which would suggest to me that she probably has a chronic psychotic, probably schizophrenic illness. There is another sister ... so there are two first cousins that have hallucinations and a probable psychotic illness. So, I think that there is likely to be a significant familial component, or hereditary component, to the illness. In other words, he is vulnerable to the development of psychotic illness. The second factor is, as I have indicated, the precipitation by ! the effect of cannabis, the active component of which is tetrahydro-cannabinol, which is a hallucinatory substance for many of the users, and is very likely to have been the factor that brought it all to life and has maintained it. I think a third factor is external in a sense that he told me that he thought the voices had occurred from soon after the assault on the child. He also said that it had occurred throughout the time that he was in prison, and he was, in fact, subject to two threats and was in fact bashed twice in prison by the father of the child in question, and I think that person's brother and some of his friends. I would have thought that, given the fact that he was actually threatened and actually bashed in goal as retribution for his assault, that he had some realistic good reason to fear that he was in fact going to be harmed. So I think that factor probably has played a role, so that there is a combination of constitutional hereditary factors, drug induced factor, and circumstances that h! ave given rise to it and main!tained it.

...

Would medication help him at this point?---Well, I spent some time with Mr Cash and his mother just discussing this point that the first issue was what is the nature of his understanding and insight in the nature of the voices and the condition in general. Essentially he is convinced that the voices are real. I put to him that what is suffering from is a psychotic illness, that it has as its basis various chemical changes in his brain that give life to these and other symptoms and it represented a kind of metabolic imbalance, and that this can be corrected to a considerable extent by the use of medications. Now he understood all this, he understood what I was saying, but essentially didn't accept that this was an illness of the mind or the brain. He saw it as something that was real and he had good reason to continue to fear it. Now, I take it that he has no real acceptance or insight into the nature of the symptoms, so I tried to put to him, notwithstanding his b! elief that the voices were real, that it might be nonetheless useful to take medication, in that it might at least relieve his fears or anxieties. Again he didn't really show any insight or acceptance in this. The reason that I put all this to him was partly because I felt that, given that he has got a chronic psychotic illness and he requires treatment and I had some responsibility to explain this to him and indicate that there were services available that he could attend, and gave him a copy of part of a leaflet of a contact for the Mental Health Service in Parramatta on the corner of George and Marsden Streets, he knew where that was and had some phone numbers to contact. I must say at the end of all of that, I didn't gain the impression that he was particularly convinced by my affirmation that this was a condition that required treatment. I thought that if he did go there that he would probably do so reluctantly and he would require a good deal of encouragement and probably, really, in the end some so! rt of sanction should he not !take the medication. By that I mean that given the likelihood that he'll have an acute recurrence and be at risk of doing some harm to himself or possibly someone else, that he might come to an admission to a psychiatric hospital and he might be subject to the community treatment order which would impose the condition that he had melloril anti-psychotic medication long term, whether he accepted that or not.

The D President: But short of scheduling him you can't very well go ahead with that can you?---Well he's not schedulable at this moment because, although he has active symptoms, he hasn't really indicated to me or in fact done anything that would indicate that he is an immediate cause of harm to himself or others. But in view of his history I think some of the offences concerned may have occurred in the context of his psychotic state at the time.

...

Mr Smith: Doctor, if Mr Cash - if his condition continues untreated, what is the prognosis of it?---Well, the prognosis in general is that an untreated psychotic illness developing in early adulthood or late adolescence is inevitably going to deteriorate with the passage of time, with a mixture of deterioration in cognitive affective - that is emotional and social and occupational - functioning. So that he will end up much like a deteriorated chronic schizophrenic. The other aspect of this is that the hallucinations are likely to become more intense or vivid from time to time, and there is always a danger that he will attribute the hallucinations to some other unsuspecting and innocent person, and may well act upon that hallucination and the associated delusion by seeking to defend himself in some way against the believed persecutor. You know, people that keep knives under their beds or carry weapons on them for fear that they are ! in imminent danger of doing harm are at considerable risk of doing harm themselves against an alleged perpetrator.

I know this is probably a difficult question to answer, but do you have any judgment on what sort of degree of risk Mr Cash would be to himself or particularly others, if the condition remains untreated?---Well, I think the risk is likely to increase with the passage of time. It's likely to increase if he continues to use marijuana or other illicit drugs, but essentially hallucinogenic ones like amphetamine or cocaine. I think that there are personality issues which are in a sense independent of the psychosis. I think just looking at his record, I think that he has a fairly low frustration tolerance and he is apt to react in circumstances that he feels obstructed or frustrated. But in someone who has a deteriorating schizophrenia, then that frustration tolerance is likely to decrease along with the activity of the illness. In other words we have to look at the personality structure of the person who suffers from the schizophrenia, because schizophrenia can occur i! n people with different types of personality as there are in the general community, and those background features of a personality which may be evidenced by other aspects of their social behaviour may give a strong indication of the way in which a person is likely to act if they become more actively psychotic.

How important, if at all, would family support be in perhaps controlling some of the symptoms?---Well, family support is a two-edged sword. Schizophrenia is a condition where family support in general, where it is accepting and tolerant and understanding of the nature of the disorder, are very useful. On the other hand family support can be untoward in the sense that if it is very intense and there is much expressed emotion in the family relationships that it can actually unduly affect the person with psychosis. Another factor which may be relevant is the understanding of the nature of the psychosis that the family has and their willingness to encourage and support the person in treatment and ensure that they don't have access to illicit hallucinogenic substances.

And what impression did you get of Mr Cash's family in that regard?---Well, he told me that he has been living away from the family for some time and although his mother came along to this interview with him, I didn't gain the impression that he relied on family support in the last year or so. He said, for example, that he had been living on the streets for a number of months during the course of last year, until, I understand, he was more or less picked up by the people of the Christian Outreach Centre in Parramatta and sort of taken in, and I gather friends of those in turn have found him accommodation, or he's lived with them. So, for whatever reasons he has not had his family support there. I might say that often happens with people in schizophrenia in that they often become quite alienated from their own family. One because often their behaviour is not tolerated by the family, and two because the nature of the delusions often extend to involve their own famil! y and they may feel persecuted by them and therefore move away.

One thing I think you mentioned was that his mother had encouraged him to stop taking the medication?---Yes, that's not a good sign.

...

The D President: Well Doctor, you see I've got a major problem on my hands in the sense that if I were merely dealing with a man who had persecutory delusions - and I gather from your evidence, very little insight into his condition and therefore I presume will show considerable resistance to antipsychotic medication, would you agree with that?---No, not necessarily. I mean I think that just simply hasn't been tested. He may indeed still be responsive to anti psychotic medication in the sense that it may relieve his hallucinations. He may not necessarily at the end of that demonstrate any greater understanding or insight into the nature of the condition.

No, we're at cross purposes. When I say 'resistant to', I don't mean 'resistant'---Oh, I see, resistant to treatment, yes, quite.

...

The D President: But one of the things that I need to take very seriously into account is that the purpose of deportation is to protect the safety and welfare of the Australian community. Now you did say to Mr Smith that given that these hallucinatory and persecutory delusions that he suffers from may constitute a risk to himself, and you said or someone else. Now, would you regard the fact that - and we must assume that he will remain untreated, he's got no insight into his condition, he is unlikely to seek psychiatric help - we've got a 'loose canon', so to speak, who suffers from increasing severity of untreated frank schizophrenic episodes? What in your view is the likelihood that if this man is allowed to progress in an untreated fashion - and I think that I've got to assume that he is unlikely to seek treatment on the basis that past experience seems to confirm it - and you say that he's got little insight into his condition o! r that it's genetically determined, is there a significant risk that he is likely to either harm himself or others in one of his delusionary episodes?---I think that there is certainly significant risk, the prediction of dangerousness is - - -

Notoriously difficulty? - Notoriously difficult. But there are some significant factors that ought to be taken into account. Probably one of the most reliable factors in the prediction of dangerousness is simply if a person has been dangerous previously, they are very likely to be dangerous again.

Yes. The difficulty about that one is that, I think we both agree that the assault on the child was not related to his illness or are you not prepared to make that concession?---Well it depends on how you view it, I don't think that the assault occurred because of the immediacy of psychotic symptoms at the time. On the other hand, this man, I think, has a sort of short fuse or a low frustration tolerance, and if you are suffering from a psychotic illness, then that's more precarious. So if you like, in an indirect way I think the fact that he was probably deteriorating into a psychotic illness simply made that more likely. Just looking at his criminal history, I would be concerned that with that history, and given the fact that he has an untreated now chronic psychotic illness, that there is a high likelihood that there will be further incidents in the future.

33. On the whole of the evidence, and in particular the diagnosis and prognosis of Dr Giuffrida and the applicant's lack of insight into his condition, I am satisfied that this man's continued presence in this country poses an unacceptable risk to the Australian community, in that the likelihood that his chronic psychotic illness, amply attested to by two psychiatrists, will deteriorate to the point where the risk of injury to members of the public is real rather than fanciful. He has already committed one serious offence and, whilst I cannot be certain to what extent - if any - this was related to his schizophrenia, what has been amply demonstrated is that the applicant has a propensity to become violent when stressed - and may become stressed by real or imaginary provocation. I am mindful that deportation is not punishment - he has already been punished for his offences - but a device for the protection of the Australian community, whose secur! ity must ultimately take priority over all other considerations. The duty of the Tribunal in such a case is to apprehend the level of risk of further transgressions. The level of risk acceptable to the community depends principally upon the nature and extent of the damage which further transgressions would produce; see Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36. In other words, the greater the potential threat to the community the lower is the acceptable level of risk that the person concerned will commit further crimes. And this is so even if such future offences are not "crimes" strictu sensu in the sense that the offender may be able to plead insanity.

34. Having found that the applicant's continued presence in this country constitutes an unacceptable risk, his claim to remain in Australia is even less persuasive in that he has no effective family support, his deportation is unlikely to deeply affect any immediate member of his family, and the applicant is unlikely to suffer any significant detriment or hardship by being deported to New Zealand, a country whose psychiatric services are, according to the evidence, as efficient as ours, and whatever treatment this man may require is as readily available in that country as here, assuming he were to seek it.

35. In summary, this man has committed an offence described by the judge as "abhorrent", and one which is demonstrably offensive to Australian community standards in that he maliciously wounded a young defenceless child, causing permanent damage. I am satisfied on the evidence that he constitutes a significant threat because there is a real risk that he will commit a further offence or offences if allowed to remain in this country. For good measure, his total contribution and commitment to Australia has been slender and his future contribution is likely to be negligible, albeit this is due to an underlying mental illness over which he has no control and which is likely to progress since he appears hostile to accept anti-psychotic medication and/or to seek treatment. The issue may well have been different if the applicant were suffering from a certifiable mental illness - a proposition specifically denied by Dr Giuffrida - in which case this country might well be sai! d to have an obligation to provide sanctuary for such a person. This is not such a case.

36. For the above reasons I affirm the decision under review.

I certify that this and the sixteen (16) preceding pages are a true copy of the decision and reasons for decision herein of Deputy President Dr P Gerber

Signed: .....................................................................................

Associate

Date/s of Hearing 4 January 1999

Date of Decision 22 January 1999

Counsel for the Applicant N/A

Solicitor for Applicant Applicant self-represented

Counsel for the Respondent N/A

Representative for the Respondent David Smith, Departmental Advocate,

Department of Immigration and Multicultural Affairs