Jayasekera and Minister for Immigration and Multicultural Affairs [2002] AATA 289 (18 March 2002)

Last Updated: 24 April 2002

DECISION AND REASONS FOR DECISION [2002] AATA 289

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/781

GENERAL ADMINISTRATIVE DIVISION )

Re ROHAN G. JAYASEKERA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date 18 March 2002

Place Melbourne

Decision The Tribunal affirms the decision under review.

(Sgd) Joan Dwyer

Senior Member

CITIZENSHIP - application for a certificate of Australian citizenship - applicant convicted of arson and ordered to be detained in Mont Park Hospital in 1990 - from 16 November 1999 he became subject to a restricted community treatment order under s 15A of the Mental Health Act 1986 - from 8 November 2001 applicant subject to a community treatment order - whether between 16 November 1999 and 8 November 2001 applicant was "confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person" so as to attract s 13(4)(a) of the Australian Citizenship Act 1948 - decision affirmed

WORDS AND PHRASES - psychiatric institution

Australian Citizenship Act 1948 ss 13(1)(d) and (e), 13(4)(a), 13(11)(f)

Sentencing Act 1991 (Vic) ss 93(1), 117(2)

Mental Health Act 1986 s 15A

REASONS FOR DECISION

18 March 2002 Mrs Joan Dwyer, Senior Member

1. This is an application for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 6 July 2001. The delegate refused to grant Mr Jayasekera a Certificate of Australian Citizenship.

2. Mr Jayasekera appeared. Ms Hearne-McKinnon appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), and also the exhibits tendered during the hearing. The respondent's exhibits were attached to the respondent's Statement of Issues lodged on 7 December 2000.

3. The issue in the matter concerns an application for a grant of Australian citizenship under s 13 of the Australian Citizenship Act 1948, ("the Act"). Mr Jayasekera has been an Australian permanent resident since 9 December 1971, when he first entered Australia. On or about 1 June 1999 he applied for a grant of Australian citizenship, under the Act. The delegate refused that application on the ground that Mr Jayasekera was excluded from a grant of citizenship because of the operation of subsection 13(11)(f) of the Act. That subsection provides:

(11) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) or (9) or include the name of a person in a certificate of Australian citizenship under subsection (10):

. . .

(f) during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings of the kind referred to in paragraph (a) in relation to the person; or

. . .

4. Before the matter came on for hearing, Mr Jayasekera's status had changed. It was therefore conceded by the respondent that Mr Jayasekera was no longer precluded from obtaining a grant of citizenship by the operation of subsection 13(11)(f) of the Act. However, the respondent then relied on s 13(4)(a) of the Act.

5. In order to understand the operation of that section it is necessary to look at the provisions of s 13 (1) of the Act. That has various requirements for qualification for a Certificate of Citizenship. Paragraphs (d) and (e) require certain periods of residency in Australia. They read as follows:

(1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

. . .

(d) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

6. There is no dispute about the fact that Mr Jayasekera has been in Australia during the specified periods, but the problem for him, is s 13(4)(a) of the Act which provides:

(4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:

(a) the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person;

7. Thus, the sole issue for determination in this matter is whether, prior to the cancellation of a Restricted Community Treatment Order on 8 November 2001, Mr Jayasekera was "confined in a psychiatric institution by order of a court made in connection with criminal proceedings against" him.

8. The facts in the matter are not in dispute. On 5 March 1990 Mr Jayasekera was found guilty of arson. His Honour, Judge Stott (exhibit R1) ordered:

. . . WHEREAS the said ROHAN JAYASEKERA has been found guilty of a criminal offence, namely arson, I DO ORDER THAT the said ROHAN JAYASEKERA be admitted to and detained in a psychiatric in-patient service to wit Mont Park Hospital M5-6, as an involuntary patient, pursuant to section 15(3)(b) of the Mental Health Act 1986. . . .

9. The respondent contended in his Statement of Issues at paragraphs 8 to 23:

8. On 5 March 1990, the applicant was found guilty of an offence of arson and ordered by the County Court of Victoria to be admitted to and detained in a psychiatric in-patient service as an involuntary patient pursuant to section 15(3)(b) of the Mental Health Act 1986 (Vic) (refer annexure 1). At the time of this conviction, the applicant was diagnosed as suffering severe paranoid schizophrenia.

9. The provisions of the Mental Health Act 1986 (Vic) ("the Mental Health Act") and the Sentencing Act 1991 (Vic) ("the Sentencing Act") referred to below are contained in annexure 2.

10. S15(3)(b) of the Mental Health Act, at the time the applicant was sentenced, provided that, where a person is found guilty of a criminal offence; and, the court is satisfied that the person suffers from a mental illness which requires treatment; and the treatment can be obtained by admission to a psychiatric in-patient service; and the person should be admitted as an involuntary patient, that:

(3) the court may make either of the following hospital orders:

(a) ...........

(b) a hospital order under which the person is admitted to and detained in a psychiatric in-patient service as an involuntary patient

11. Hospital orders made under s15(3)(b) of the Mental Health Act were of indefinite duration, subject to a decision by the consulting psychiatrist that the order was no longer necessary (see R v Cummins [1991] 1 VR 44).

12. In 1992 the Sentencing Act commenced. Subsection 15(3)(b) of the Mental Health Act was replaced by subsection 93(1) of the Sentencing Act which provides that, on the trial of a person for an offence, the court may:

(d) instead of passing sentence, make an order (a hospital order) under which the person is admitted to and detained in an approved mental health service as an involuntary patient.

13. S117(2) of the Sentencing Act sets out transitional arrangements as follows:

(2) A person in respect of whom a sentence is in force immediately before the commencement of this section continues to be subject to the requirements of that sentence in all respects as if this Act had not been passed but that sentence may be cancelled or varied and any failure to comply with it may be dealt with under this Act as if it were a sentence imposed after the commencement of this section.

14. The applicant's medical files show that the County Court order of 1990 was regularly reviewed by the Victorian Mental Health Review Board and remained in place until sometime in 1999 when the applicant was placed on Restricted Community Treatment order pursuant to s15A(1) of the Mental Health Act. The applicant remains subject to this order (refer Annexure 3).

15. Subsection 15A(2) of the Mental Health Act (as amended by the Sentencing Act) allows an authorised psychiatrist to apply to the Chief Psychiatrist for the making of a restricted community treatment order in respect of a person to whom a hospital order under s93(1)(d) of the Sentencing Act applies. The criteria for making restricted community treatment orders is set out in subsection 15A(1) of this Act.

16. Subsection 15A(5) of the Mental Health Act provides that:

a person who is subject to a restricted community treatment order is deemed to be an involuntary patient detained under s91(3) of the Sentencing Act 1991.

(Prior to the commencement of the Sentencing Act, subsection 15A(5) provided that a person who is subject to a restricted community treatment order is deemed to be an involuntary patient detained under s15(3)(b)).

17. The applicant is subject to a restricted community treatment order pursuant to subsection 15A(1) of the Mental Health Act. This order is deemed to be a hospital order under subsection 93(1)(d) of the Sentencing Act. The respondent submits that, by virtue of the transitional provisions in the Sentencing Act, the applicant is still subject to the order made by the Court in 1990 in relation to his conviction for arson.

"Confined in a psychiatric institution"

18. In 1990, the County Court order [sic] the applicant to be admitted to and detained in the Mont Park Hospital (a forensic facility). In 1995, he was transferred to Royal Park Hospital, and, since about 1999, the applicant has resided at a psychiatric residential unit, the Inner West Community Care Unit, in Travancore Crescent, Flemington, staffed and managed by the Inner West Mental Health Service. He is allowed a number of hours of unsupervised leave each week (refer annexure 4)

19. "Psychiatric institution" is defined, in section 5 of the Act simply as including "a psychiatric section of a hospital". The term does not appear to have been the subject of any judicial consideration.

20. The term was considered by the Tribunal in VZQ and Minister for Immigration and Multicultural Affairs [2000] AATA 418. In that decision, Deputy President Forest decided that residence in a rehabilitation ward within a forensic psychiatric facility, with active participation in rehabilitation programs and with periods of leave from the ward, fell within the ordinary meaning of being confined in a psychiatric institution. In that case, the applicant, who was a forensic patient under the Crimes (Mental Impairment and Unfitness to be Tried Act 1997 (Vic) was granted leave to be absent from his place of custody by the Supreme Court of Victoria. Deputy President Forrest found that:

"until such time as he was granted leave with permission to reside "out of" the psychiatric institution,.......he was "confined in" the institution....".

21. "Institution" is defined in the Macquarie dictionary as "a building used for such work as a college, school, hospital, mental hospital or the like". The nature of psychiatric care and confinement has changed significantly over the past few years and arguably the term "psychiatric institution" encompasses evolving residential arrangements for involuntary patients.

22. The applicant remains an involuntary patient on a restricted community treatment order and he is required, by the terms of his order, to reside in a mental health service residential unit. Accordingly, the respondent submits that the applicant is currently confined to a psychiatric institution within the meaning of subsection 13(11)(f) of the Act.

ORDERS SOUGHT

23. The Respondent contends that the Tribunal has no jurisdiction to alter the decision under review because subsection 13(11)(f) of the Citizenship Act operates to preclude the applicant from the grant of citizenship at this time.

10. The respondent concedes that since 8 November 2001, when Mr Jayasekera became subject to a Community Treatment Order rather than a Restricted Community Treatment Order, he has not been confined in a psychiatric institution as referred to in s 13(4)(a). The remaining issue for the Tribunal concerns Mr Jayasekera's status prior to 8 November 2001.

11. As set out in paragraph 8 Judge Stott on 5 March 1990 ordered that Mr Jayasekera "be admitted to and detained in a psychiatric in-patient service to wit Mont Park Hospital M5-6, as an involuntary patient, pursuant to section 15(3)(b) of the Mental Health Act 1986". The Concise Oxford Dictionary definition of the verb "detain" is "to keep in confinement or custody." Thus, it would seem that from 5 March 1990, Mr Jayasekera was confined in a psychiatric institution to wit Mont Park Hospital, by order of a Court, as referred to in s 13(4)(a) of the Act.

12. However, in 1992 the Sentencing Act 1991 (Vic) commenced. It provided in s 93(1)(d) for the making of hospital orders whereby a court could, instead of passing a sentence, order that a person be admitted to and detained in an approved mental health service as an involuntary patient. The Sentencing Act, included transitional arrangements. Section 117(2) provides as follows:

A person in respect of whom a sentence is in force immediately before the commencement of this section continues to be subject to the requirements of that sentence in all respects as if this Act had not been passed but that sentence may be cancelled or varied and any failure to comply with it may be dealt with under this Act as if it were a sentence imposed after the commencement of this section.

13. Accordingly, after the passing of the Sentencing Act 1991, Mr Jayasekera continued to be subject to the requirements of his sentence, namely that he be detained in a psychiatric in-patient service. So far as the evidence before me indicates, Mr Jayasekera's position did not change until 16 November 1999 when he became the subject of a Restricted Community Treatment Order (R4) made under s 15A of the Mental Health Act 1986 (R4). That Community Treatment Order contained four special conditions as to medication, monthly reviews, annual reports to the Chief Psychiatrist and encouragement to take leave. It was extended for 12 months on 9 November 2000 (R3), with the same conditions.

14. The Restricted Community Treatment Order was made under s 15A of the Mental Health Act which provides:

A person who is subject to a restricted community treatment order is deemed to be an involuntary patient, detained under section 93(1)(d) of the Sentencing Act 1991.

15. Section 93(1) of the Sentencing Act 1991 provides:

93. Hospital orders and hospital security orders

(1) If on the trial of a person for an offence -

(a) the person is found guilty; and

(b) the court is satisfied by the production of a certificate in the prescribed form of a psychiatrist and any other evidence that it may require that -

(i) the person appears to be mentally ill and to require treatment for the illness; and

(ii) the treatment can be obtained by admission to and detention in an approved mental health service; and

(iii) because of the person's mental illness, the person should be admitted and detained for treatment as an involuntary patient for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and

(c) the court has received a report in the prescribed form from the authorised psychiatrist of the approved mental health service to which it is proposed to admit the person recommending the proposed admission -

the court may -

(d) instead of passing sentence make an order (a hospital order) under which the person is admitted to and detained in an approved mental health service as an involuntary patient; or

. . .

16. The effect of s 15A of the Mental Health Act and s 93(1) of the Sentencing Act is that when Mr Jayasekera was subject to a Restricted Community Treatment Order, he was deemed to be detained in an approved mental health service as an involuntary patient by order of a court.

17. The issue is whether that is equivalent to "being confined in a psychiatric institution by order of a Court" as provided in s 13(4)(a) of the Act. So long as Mr Jayasekera was detained in a psychiatric hospital, the answer must be "yes". Mr Jayasekera gave evidence that in September 2000 he was moved from Parkville Psychiatric Unit to Norfolk Terrace Community Care Unit at Flemington. There was no evidence of a psychiatrist or administrator as to whether this was still "a psychiatric institution".

18. Mr Jayasekera gave evidence that Norfolk Terrace Care Unit consists of an administration building and a number of flats, in each of which two or three residents live under the supervision of nurses and staff. The only relevant definition of the word "institution" to which Ms Hearne-McKinnon referred me was the Macquarie dictionary definition namely, "a building used for such work as a college, school, hospital, mental hospital, or the like".

19. That definition requires consideration of whether a group of buildings can also satisfy the definition of an institution. Clearly, they can constitute "a mental health service" but is that equivalent to "a psychiatric institution"? During the hearing I referred to the Concise Oxford Dictionary. One of its definitions, definition 2, looks to purpose rather than structure. Definition 2 of "institution" provides:

A society or organisation founded especially for charitable, religious, educational or social services.

20. Ms Hearne-McKinnon submitted that the Tribunal should recognise that a mental health service, spread over several residential buildings is a more up to date concept than a psychiatric institution in one building. It would make the task of the Tribunal easier if the Act reflected the language used in the Sentencing Act 1991. However, even though the Act does not do so, it seems to me that the meaning of the term "psychiatric institution" in s 13(4)(a) of the Act is consistent with definition 2 in the Concise Oxford Dictionary, and with the definition in the Macquarie Dictionary, so long as there is not too much emphasis given to the commencing words of the definition being "a building..."

21. I have decided that so long as Mr Jayasekera was under a Restricted Community Treatment Order made under s 15A(2) of the Mental Health Act, and thus deemed by s 15A(5) to be an involuntary patient under s 93(1)(d) of the Sentencing Act, s 13(4)(a) of the Act applied to him. Thus, the Minister was not permitted by the Act to take into account, as a period during which Mr Jayasekera had been present in Australia as a permanent resident, any period between 5 March 1990 and 8 November 2001.

22. Accordingly, Mr Jayasekera will not be able to satisfy s 13(1)(d) of the Act until 8 November 2002, or s 13(1)(e) until 8 November 2003. The decision under review must be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member.

Signed: Grace Carney

Personal Assistant

Date/s of Hearing 18 March 2002

Date of Decision 18 March 2002

Counsel for the Applicant Nil

Solicitor for the Applicant Nil - Self Represented

Counsel for the Respondent Nil

Solicitor for the Respondent Ms Hearne-McKinnon, Blake Dawson Waldron